FAMILY CODE

PRIMER
Prepared and published online by SALIGAN
With the support of MISEREOR

2021
 TABLE OF CONTENTS

I. MARRIAGE 1
a. Requisites of Marriage 2
b. Marriages Exempted from License Requirement 3
c. Void and Voidable Marriages 6

II. LEGAL SEPARATION 13

III. RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE 16
IV. PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE 18
a. General Provisions 18
b. Donations by Reason of Marriage 19
c. System of Absolute Community 21
d. Conjugal Partnership of Gains 27
e. Separation of Property of the Spouses and Administration of Common
35
Property by One Spouse During the Marriage
f. Regime of Separation of Property 36
g. Property Regime of Unions Without Marriage 36

V. THE FAMILY 38
a. The Family as an Institution 38
b. The Family Home 39

VI. PATERNITY AND FILIATION 41

a. Legitimate Children 41
b. Proof of Filiation 43
c. Illegitimate Children 44
d. Legitimated Children 45

VII. ADOPTION 46
VIII. SUPPORT 60
IX. PARENTAL AUTHORITY 62
a. General Provisions 62
b. Substitute and Special Parental Authority 63
c. Effect of Parental Authority Upon the Persons of the Children 64
d. Effect of the Parental Authority Upon the Property of the Children 65
e. Suspension or Termination of Parental Authority 66

X. EMANCIPATION OF AGE OF MAJORITY 68

 I. MARRIAGE
MARRIAGE
Marriage is a special contract of permanent
union between a man and a woman
entered into in accordance with law for
the establishment of conjugal and family
life. It is the foundation of the family and
an inviolable social institution whose
nature, consequences, and incidents
are governed by law and not subject
to stipulation, except that marriage
settlements may fix the property
relations during the marriage within
the limits provided by this Code.

MARRIAGE VS ORDINARY CONTRACTS

MARRIAGE ORDINARY CONTRACTS

As a contract
A special contract and a social Mere contracts (agreement)
institution.
Applicable Law
Family Code Civil Code
Right to stipulate
General rule: Governed by the law Governed by the agreements of
and not the agreements between the parties.
the husband and wife.

Exception: Marriage settlements

may be agreed upon by the hus-
band and wife.
Gender requirement
Must be between a man and a No gender requirement.
woman.
Dissolution
Dissolved by the death or annul- Parties to the contract can agree to
ment of the marriage. Husband end the contract.
and wife cannot agree to end the
marriage.
2 MARRIAGE

A. REQUISITES OF MARRIAGE

ESSENTIAL REQUISITES
I. Legal Capacity
a. Husband and wife should be 18 years old;
b. Must be between a man and a woman,
i. Effect of sex-change
● The Supreme Court said that sex is determined by visually
looking at the genitals of a baby at the time of birth and that
there is no law legally recognizing sex reassignment. (Silverio v.
Republic, G.R. No. 174689, October 19, 2007, 537 SCRA 373)
This means that the husband and wife must be a man and a
woman from birth.
● Intersex individuals: Congenital Adrenal Hyperplasia (CAH)
which is a condition where the person afflicted has both male
and female characteristics and organs (Intersex). The Supreme
Court said that it is up to the individual what gender they may
choose. (Republic v. Cagandahan, G.R. No. 166676, September
12, 2008, 565 SCRA 72)
c. No impediment to marry each other.
i. The husband nor the wife must be in a valid and existing
relationship.
ii. The husband and the wife must not be related to each other, by
blood (consanguinity) or by law (affinity).

II. Consent
a. Freely given
Consent here refers to the consent of the contracting parties. The
consent must refer to the contracting parties’ bona fide intention to
be married to the other. i.e. to make the woman his wife. (People v.
Santiago, G.R. No. 27972, 1927)
i. Marriage is a voluntary act.
1. If there is consent but vitiated by error, fraud, intimidation, force,
etc., the consent is not given freely, therefore the marriage is
voidable – meaning valid until annulled.
2. If there is no consent – the husband or the wife or both do not
want to get married to the other/ each other – the marriage is
invalid/ void.
 MARRIAGE 3
III. No Subsisting Marriage
A judicial decree terminating the previous marriage is required for
remarriage.

FORMAL REQUISITES

I. Authority of the Solemnizing Officer

Marriage may be solemnized by:
a. Any incumbent member of the judiciary within the court’s jurisdiction;
i. A judge can solemnize marriage only within his territorial
jurisdiction. but in the case of Navarro v Domagtoy, the Supreme
Court said that such defect is only an irregularity in the formal
requisite but it does not affect the validity of the marriage. The
judge may, however, be held administratively liable (259 SCRA
129.)
b. Any priest, rabbi, imam, or minister of any church or religious sect
duly authorized by his church or religious sect and registered with the
civil registrar general, acting within the limits of the written authority
granted by his church or religious sect and provided that at least one
of the contracting parties belongs to the solemnizing officer’s church
or religious sect;
c. Any ship captain or airplane chief in case the marriage is between
passengers or crew members, where either party is at the point of
death and the ship/plane is at sea/in flight or at stopovers;
d. Any military commander of a unit to which a chaplain is assigned, in
the absence of the latter, during a military operation, likewise only if
the marriage is between persons within the zone of military operation,
whether members of the armed forces or civilians, and either party is
at the point of death;
e. Any consul-general, consul, or vice-consul where the marriage is
between Filipino citizens abroad

II. Marriage License

a) The license shall be valid in any part of the Philippines for a period of
one hundred twenty days from the date of issue, and shall be deemed
automatically canceled at the expiration of the said period if the
contracting parties have not made use of it. The expiry date shall be
stamped in bold characters on the face of every license issued. (65a)
Marriages celebrated without a marriage license before the effectivity
of the Family Code are void ab initio as marriage license was an essential
requisite in the Civil Code. (Kho v. Republic, G.R. No. 147862, 2016)
4 MARRIAGE

b) Marriage license is different from a marriage certificate. A marriage

license gives authority to the bride and groom to marry each other.
On the other hand, a marriage certificate only shows that there has
been a marriage between two individuals.

Alcantara v Alcantara
G.R. No. 167776, August 28, 2007

The Supreme Court ruled that the issuance of a marriage license is the most
important requisite in the validity of a marriage as it is the only act whereby
the state intervenes in the formation of the family.Without a marriage license,
the marriage should be considered void. To be considered void on the ground
of the absence of such marriage license, the law requires that the absence of
such marriage license must be apparent on the marriage contract of at the
very least, supported by a certification from the local civil registrar that no
such marriage license was issued to the parties.
III. Marriage ceremony
a. The family code requires the following:
i. The bride and groom must personally appear;
1. Marriage by proxy is not allowed in the Philippines.
ii. The marriage must be done in the presence of the following:
1. The solemnizing officer;
2. Not less than two (2) individuals who are of legal age.
IV. Divorce
a. Divorce under our law is possible only when the national law of a
foreign spouse permits it. Divorce between a Filipino citizen and a
foreigner which capacitates the latter to remarry shall capacitate
the Filipino spouse to marry.

Republic of the Philippines v. Manalo

G.R.No. 221029, 2018

Divorces obtained abroad by Filipino citizens may now be validly recognized

in the Philippines but only in cases of mixed marriages involving a Filipino and
a foreigner. Family Code makes no distinction as to who obtains the divorce.
All that is required is that it is validly obtained abroad. A Filipino who initiates
the divorce proceeding against a foreign spouse still ends up in the same po-
sition as one whose foreign spouse initiated proceedings: they both no longer
have spouses. There should be no distinction between the two cases in order
to avoid the absurd situation where a Filipino spouse is still married to the alien
spouse even though the latter is capacitated by his own laws to remarry and is
no longer married to the Filipino
 MARRIAGE 5
Galapon vs. Republic
G.R. No. 243722, January 22, 2020

In the recent case of Manalo, the Court en banc extended the scope of Article
26 (2) to even cover instances where the divorce decree is obtained solely by
the Filipino spouse. Pursuant to the majority ruling in Manalo, Article 26 (2)
applies to mixed marriages where the divorce decree is: (i) obtained by the
foreign spouse; (ii) obtained jointly by the Filipino and foreign spouse; and (iii)
obtained solely by the Filipino spouse. Based on the records, Cynthia and Park
obtained a divorce decree by mutual agreement under the laws of South Ko-
rea. The sufficiency of the evidence presented by Cynthia to prove the issu-
ance of said divorce decree and the governing national law of her husband
Park was not put in issue. Thus, the Court ruled that as confirmed by Manalo,
the divorce decree obtained by Park, with or without Cynthia’s conformity, falls
within the scope of Article 26 (2) and merits recognition in this jurisdiction.

Note:
Philippine laws do not provide for absolute divorce between Filipinos
except between Muslim Filipinos and Filipino citizens cannot obtain a
divorce abroad.

B. MARRIAGES EXEMPTED FROM LICENSE REQUIREMENT

I. Marriages at the point of death

a. A marriage in articulo mortis is a marriage where one of the parties
is at the point of death.
b. The person who solemnized the marriage under articulo mortis
must execute an affidavit before the local civil registrar stating that
he solemnized the marriage under articulo mortis. The original
copy of the affidavit shall be submitted to the local civil registrar
of the city or municipality where the marriage was performed
within the period of 30 days.
II. Marriages in remote places
a. If the residence of either party is so located that there is no means
of transportation to enable such party to appear personally before
the local civil registrar, the marriage may be solemnized without
the necessity of a marriage license.
III. Marriages among Muslims or members of ethnic cultural
communities.
a. For as long as the marriage was done in accordance with the
traditions of the group. If it is mixed marriage, then the requirement
of a marriage license cannot be dispensed with.
b. A marriage between Muslim and non-Muslim is governed by the
Family Code of the Philippines (Atillano Nollora Jr. v People of the
philippines, G.R. No. 191425)
6 MARRIAGE

IV. Marriages between parties cohabiting for at least 5 years

a. Living together exclusively and continuously for at least 5 years as
husband and wife; and
b. No legal impediment to marry each other. The five-year period
of cohabitation should be one of a perfect union valid under the
law but rendered imperfect only by the absence of the marriage
contract. The Supreme Court ruled that the parties should have
been capacitated to marry each other during the entire period
and not only during the time of the marriage (Office of the Court
Administrator v Judge Anatalio Necessario, A.M. No. MTJ-07-1691,
April 2, 2013).

V. Marriages at the point of death solemnized by a ship captain or

airplane pilot.

VI. Marriages within zones of military operation.

C. VOID AND VOIDABLE MARRIAGES

VOID MARRIAGES

a. A void marriage is that which is not valid from its inception.

b. Void marriages can never be ratified or cured by any act of any of the
contracting parties.
c. Types:
i. Absence of any of the essential or formal requisites of marriage;
ii. Those contracted by any party below eighteen years of age even
with the consent of parents or guardians; Furthermore, under
Republic Act No. 11696 or the otherwise known as “An Act Prohibiting
the Practice of Child Marriage and Imposing Penalties for Violations
Thereof,” those who facilitated and solemnized such marriages shall
be held criminally liable.
iii. Those solemnized by any person not legally authorized to perform
marriages unless such marriages were contracted with either or both
parties believing in good faith that the solemnizing officer had the
legal authority to do so;
iv. Those solemnized without license, except those covered the
preceding Chapter;
 MARRIAGE 7
Alcantara v Alcantara
G.R. No. 167776, August 28, 2007

The Supreme Court ruled that the issuance of a marriage license is

the most important requisite in the validity of a marriage as it is the
only act whereby the state intervenes in the formation of the family.
Without a marriage license, the marriage should be considered
void. To be considered void on the ground of the absence of such
marriage license, the law requires that the absence of such marriage
license must be apparent on the marriage contract of at the very
least, supported by a certification from the local civil registrar that
no such marriage license was issued to the parties.

v. Those bigamous or polygamous marriages not failing under Article

41;
Bigamous
A person who marries another, knowing that the latter is already
married and that his marriage is valid and subsisting, can be
prosecuted for bigamy (People vs Archilla, 1 SCRA 698).
Exception: A “bigamous” marriage may be considered valid if, prior
to the subsequent marriage and without prejudice to the effect of
the reappearance of the other spouse, the present spouse obtains a
judicial declaration of presumptive death via a summary proceeding
in a court of competent jurisdiction.
Polygamous
Except those allowed under special laws such as the Muslim Code or
under Article 41 of the Family Code, the law prohibits a married man
or woman from contracting another bond of union as long as the
consort is alive.
vi. Those contracted through mistake of one contracting party as to the
identity of the other;
● The oft-given example of mistake in identity is when one of the
contracting parties marries the twin of the other party, believing
that such twin is his or her lover. This ground goes into the very
essentials of a valid marriage as there is complete absence of
consent, thereby rendering the marriage void ab initio.
vii. Those subsequent marriages that are void under Article 53;
● Failure to make a liquidation, partition and distribution of the
properties of the previous marriage.
viii. Marriage contracted by any party, who at the time of the celebration
of the marriage, was Psychologically Incapacitated;
8 MARRIAGE

1. It involves a senseless, protracted, and constant refusal to

comply with the essential marital obligations by one or both of
the spouses although he, she or they are physically capable of
performing such obligations (Chi Ming Tsoi v. Court of Appeals,
78 SCAD 57, 266 SCRA 325).
2. There are 3 characteristics for determining psychological
incapacity:
a. Gravity - grave or serious such that the party cannot carry
out normal and ordinary duties of marriage under ordinary
circumstances;
b. Juridical Antecedence - it must be rooted in the history of
the party before the marriage; and
c. Incurability - must be incurable OR the cure is beyond the
means of the party (Santos v. Bedia-Santos, G.R. No. 112019,
1995)
Note:
Please remember that a final judgment declaring a previous
marriage void is necessary for purposes of remarriage (Art. 40,
Civil Code).
3. Jurisprudential Guidelines:
Republic v Molina
G.R. No. 108763, 1997

Molina Doctrine in Psychological Incapacity

a. The burden of proof to show the nullity of the marriage belongs to the
plaintiff. This is to be investigated by the OSG for collusion.
b. The root cause of the psychological incapacity must be:
1. Medically or clinically identified;
2. Alleged in the complaint;
3. Sufficiently proven by the experts; and
4. Clearly explained in the decision.
c. The incapacity must be proven to be existing at “the time of the celebra-
tion” of the marriage.
d. Such incapacity must also be shown to be medically or clinically perma-
nent or incurable.
e. Such illness must be grave enough to bring about the disability of the
party to assume the essential obligations of marriage.
f. The essential marital obligations must be those embraced by Articles 68
up to 71 of the Family Code as regards the husband and wife as well as
Articles 220, 221, and 225 of the same Code in regard to parents and their
children.
g. Interpretations given by the National Appellate Matrimonial Tribunal of
the Catholic Church in the Philippines, while not controlling/decisive,
should be given great respect by our courts.
h. The trial court must order the prosecuting attorney or fiscal and the So-
licitor General to appear as counsel for the state. No decision shall be
handed down unless the Solicitor General issues a certification.
 MARRIAGE 9
Ting v. Velez-Ting
G.R. No. 166562, 2009

The Supreme Court ruled that the stringent requirements set forth by Mo-
lina should be relaxed and applied case-to-case. To require the allegation
of the root cause of psychological incapacity by an accredited psychologist
may prove too expensive for the parties. But where the parties had full op-
portunity to present expert opinions, such will be weighed by the Court in its
decision.

Tan-Andal v Andal
G.R.No. 196359, May 11, 2021

The Supreme Court overruled its decisions in the previous cases on psycho-
logical incapacity. Psychological incapacity consists of clear acts of dysfunc-
tionality that show a lack of understanding and concomitant compliance with
one’s essential marital obligations due to psychic causes. The court now cat-
egorically abandons the second Molina guideline. Psychological incapacity is
neither a mental incapacity nor a personality disorder that must be proven
through expert opinion. There must be proof, however, of the durable or en-
during aspects of a person’s personality, called “personality structure,” which
manifests itself through clear acts of dysfunctionality that undermines the
family.It is not a medical illness that has to be medically or clinically identi-
fied; hence, expert opinion is not required. Difficult to prove as it may be, a
party to a nullity case is still required to prove juridical antecedence because
it is an explicit requirement of the law. Proof of juridically antecedent psy-
chological incapacity may consist of testimonies describing the environment
where the supposedly incapacitated spouse lived that may have led to a par-
ticular behavior.

As an explicit requirement of the law, the psychological incapacity must be

shown to have been existing at the time of the celebration of the marriage,
and is caused by a durable aspect of one’s personality structure, one that
was formed before the parties married. Furthermore, it must be shown to be
caused by a genuinely serious psychic cause. To prove psychological inca-
pacity, a party must present clear and convincing evidence of its existence.

ix. Incestuous Marriages

● Regardless of whether the relationship is legitimate or
illegitimate, marriage between the following are void:
a. Between ascendants and descendants of any degree; and
b. Between brothers and sisters, whether of the full or half-
blood.
10 MARRIAGE

x. Marriages contrary to public policy

1. Between collateral blood relatives, whether legitimate or
illegitimate, up to the fourth civil degree;
2. Between step-parents and step-children;
3. Between parents-in-law and children-in-law;
4. Between the adopting parent and the adopted child;
5. Between the surviving spouse of the adopting parents and the
adopted child;
6. Between the surviving spouse of the adopted child and the
adopter;
7. Between an adopted child and a legitimate child of the adopter;
8. Between the adopted children of the same adopter;
9. Between parties where one, with the intention to marry the
other, killed that other person’s spouse or his or her own spouse.
xi. Non-compliance with recording requirement after declaration of
nullity
● Previously, under the Civil Code, no judicial declaration for nullity
of previous marriage was required to contract a subsequent
marriage. However, under the Family Code, a subsequent
marriage shall now be void if the following are not recorded in
the appropriate civil registry and registry of property:
(1) Judgment of annulment or absolute nullity of previous
marriage;
(2) Partition and distribution of the spouses’ properties; and
(3) Delivery of the children’s presumptive legitime

VOIDABLE MARRIAGES

A marriage that is annullable is valid until otherwise declared by the court.

a. Types
i. Marriage of a party 18 years of age or over but below 21 solemnize
without the consent of the parents, guardian or person having
substitute parental authority over the part, in that order;
● The law considers persons of the age of at least 18 years and
below 21 years as not possessing that degree of maturity to be
able to comprehend thoroughly the consequences and serious
responsibilities of marital relations. Hence, before marriage, he or
she must obtain parental consent.

ii. Unsound mind;

● Must exist at the time of the celebration of the marriage. Insanity
that occurs after the celebration of marriage does not constitute a
cause for nullity (Katipunan v. Tenorio, G.R. No. 43442, 1937).
 MARRIAGE 11
● There must be such a derangement of the mind to prevent the
party from comprehending the nature of the contract and from
giving to it his free and intelligent consent.

iii. Consent was obtained by fraud;

● Fraud refers to the non-disclosure or concealment of certain
circumstances which materially affect the essence of marriage.
Hence there is no fraud when there is no concealment or there is
disclosure.
a. Non-disclosure of a previous conviction by final judgment of
the other party of a crime involving moral turpitude;
b. Concealment by the wife of the fact that at the time of the
marriage, she was pregnant by a man other than her husband;

Buccat v. Buccat
G.R. No 47101, 1941
The woman was 7 months pregnant at the time she met petitioner. He
cannot claim that the pregnancy was concealed from him and that he
was defrauded into marrying her.
Aquino v. Delizo
G.R. No. L-15853, 1960
But where the wife concealed the fact that she was 4 months preg-
nant during the time of the marriage and was “naturally plump,” Delizo
could hardly be expected to know, by mere looking, whether or not she
was pregnant at the time of the marriage.

c. Concealment of sexually transmissible disease, regardless of

its nature, existing at the time of the marriage; or

Almelor v. RTC
G.R. No. 179620, 2008
It is the concealment of homosexuality, and not homosexuality per
se, that vitiates the consent of the innocent party. Such concealment
presupposes bad faith and intent to defraud the other party in giving
consent to the marriage.

d. Concealment of drug addiction, habitual alcoholism or

homosexuality or lesbianism existing at the time of the
marriage.
No other misrepresentation or deceit as to character, health,
rank, fortune or chastity shall constitute such fraud as will give
grounds for action for the annulment of marriage. (86a)
12 MARRIAGE

iv. Consent was obtained by force, intimidation or undue influence;

v. Impotency
vi. Serious and incurable sexually transmitted disease (STD).

Void Voidable
Action for nullity. Action for annulment.
Considered as having never to Valid until otherwise declared by the court.
have taken place and cannot
be the source of rights.
Can never be ratified. Can be generally ratified or confirmed by free
cohabitation or prescription.
Can be attacked collaterally. Cannot be assailed collaterally except in a direct
proceeding. This means that its validity can only be
questioned in a proceeding specifically initiated for such
purpose.

Can be questioned even after Can be assailed only during only during the lifetime of
the death of either party. the parties and not after death of either.
 II. LEGAL SEPARATION

A. GROUNDS
a. Repeated physical violence or grossly abusive conduct directed against
the petitioner, a common child, or a child of the petitioner;
b. Physical violence or moral pressure to compel the petitioner to change
religious or political affiliation;
c. Attempt of respondent to corrupt or induce the petitioner, a common
child, or a child of the petitioner, to engage in prostitution, or connivance
in such corruption or inducement;
d. Final judgment sentencing the respondent to imprisonment of more
than six years, even if pardoned; Drug addiction or habitual alcoholism of
the respondent;
e. Lesbianism or homosexuality of the respondent;
f. Contracting by the respondent of a subsequent bigamous marriage,
whether in the Philippines or abroad;
• Adultery is not a continuing crime; it is consummated at every
moment of carnal knowledge. Thus, every sexual act is a ground
for legal separation. (People v. Zapata and Bondoc, G.R. No. L-3047,
1951)
g. Sexual infidelity or perversion;
h. Attempt by the respondent against the life of the petitioner; or
i. Abandonment of petitioner by respondent without justifiable cause for
more than one year.
• To be a ground for legal separation, abandonment must be
without just cause. (Ong Eng Kiam v. Ong, G.R. No. 153206, 2006)
For purposes of this Article, the term “child” shall include a child by nature
or by adoption. (9a)
14 LEGAL SEPARATION

B. DEFENSES
a. Where the aggrieved party has condoned the offense or act complained
of
i. The Supreme Court ruled that condonation may be given expressly or
impliedly. An example of an implied condonation is when a husband
repeatedly has intercourse with the wife despite the wife’s cruelty.
“Although he did not wish it, [he did it] eventually for the sake of
peace.” (Willan v. Willan, G.R. No. L-13553, 1960)
b. Where the aggrieved party has consented to the commission of the
offense or act complained of;
i. A husband who doesn’t interfere with regard to the amorous relations
between his wife and Ramos constitutes consent. (People v. Sensano
and Ramos, G.R. No. L-37720, 1933)
c. Where there is connivance between the parties in the commission of the
offense or act constituting the ground for legal separation;
d. Where both parties have given ground for legal separation;
e. Where there is collusion between the parties to obtain decree of legal
separation; or
i. Collusion in matrimonial cases is the act of married persons in
procuring a divorce by mutual consent, whether by preconcerted
commission by one of a matrimonial offense, or by failure, in
pursuance of agreement, to defend divorce proceedings. (Brown v.
Yambao, G.R. No. L-10699, 1957)
f. Where the action is barred by prescription.

C. COOLING-OFF PERIOD
Rule: The case shall not be tried (on the merits) within six months from
the filing of the petition. To enable the contending spouses to settle their
differences.
Exception: If the ground for the petition constitutes “violence” as defined in
R.A. No. 9262 or the Anti-Violence Against Women and their Children Act.

D. RECONCILIATION EFFORTS
a. No legal separation may be decreed unless the Court has taken steps
toward the reconciliation of the spouses and is fully satisfied, despite such
efforts, that reconciliation is highly improbable. (Art. 59)
b. Consequences:
i. The legal separation proceedings, if still pending, shall thereby be
terminated at whatever stage; and
 LEGAL SEPARATION 15
ii. The final decree of legal separation shall be set aside, but the separation
of property and any forfeiture of the share of the guilty spouse already
effected shall subsist, unless the spouses agree to revive their former
property regime. The court’s order containing the foregoing shall be
recorded in the proper civil registries. (108a)

E. EFFECTS OF FILING THE PETITION

a. Spouses shall be entitled to live separately from each other.
b. The court, in the absence of a written agreement between the spouses,
shall designate either of them or a third person to administer the absolute
community or conjugal partnership property. The administrator appointed
by the court shall have the same powers and duties as those of a guardian
under the Rules of Court.

F. EFFECTS OF DECREE OF LEGAL SEPARATION

a. The spouses shall be entitled to live separately from each other, but the
marriage bonds shall not be severed;
b. The absolute community or the conjugal partnership shall be dissolved
and liquidated but the offending spouse shall have no right to any share
of the net profits earned by the absolute community or the conjugal
partnership, which shall be forfeited in accordance with the provisions of
Article 43(2);
c. The custody of the minor children shall be awarded to the innocent
spouse, subject to the provisions of Article 213 of this Code. However, R.A.
No. 9262 (Anti-Violence Against Women and Their Children Act of 2004)
prohibits the awarding of custody of minor children to the perpetrator of
a woman who is suffering from battered woman syndrome.
d. The obligation of mutual support between the spouses ceases. By way of
exception, the court may, however, order the guilty spouse to give support
to the innocent spouse.
III. RIGHTS AND OBLIGATIONS BETWEEN HUSBAND
AND WIFE

A. OBLIGATIONS OF THE HUSBAND AND WIFE

a. Live together
i. Cohabitation or consortium (including sexual intercourse)
1. The husband can be charged of rape if the wife does not consent
to sexual intercourse.
ii. The wife may establish a separate residence or domicile in the following
cases:
1. If the husband continually indulges in illicit relations with others
even if the concubine or concubines are not brought into the marital
abode. (Dadivas v. Villanueva,54 Phil. 92).
2. If the husband is immoderate or barbaric in his demands for sexual
intercourse. (Goitia v. Campos-Rueda, 35 Phil. 252).
3. If the husband maltreats her. (Goitia v. Campos-Rueda, 35 Phil. 252;
Arroyo v. Vasquez de Arroyo, 42 Phil. 54).
4. If the husband continually gambles, refuses to support the family,
and insults the wife. (Panuncio v. Sula, [C.A.] 34 O.G. 1291).

Arroyo v Arroyo
42 PHIL 54

The court however cannot compel a spouse to live with the other spouse
if the latter does not want to as the said duties are highly personal. It is not
within the province of the courts of this country to attempt to compel one
of the spouses to cohabit with and render conjugal rights to the other. It
has been held that the wife’s domestic assistance and conjugal compan-
ionship are purely personal and voluntary acts which neither the spouses
may be compelled to render.
 RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE
17
People v Jumawan
G.R. No. 187495, April 21, 2014

Husbands do not have property rights over their wives’ bodies. Sexual inter-
course, albeit within the realm of marriage, if not consensual, is rape.

b. Observe mutual love, respect, and fidelity

iii. The law requires mutual love, not obedience.

Chi Ming Tsoi v CA

266 SCRA 324

Husband and wife are obliged to live together under one roof, observe mutual
love, respect and fidelity, and render mutual help and support. These marital
obligations are very essential that failure of a spouse to perform these obliga-
tions due to psychological causes could be considered a ground to nullify the
marriage under Article 36 of the Family Code. Procreation is one of the essen-
tial marital obligations.

c. Render mutual help and support

d. The court cannot force them to comply with the obligations mandated
by law except for support.
Note:
Either spouse may exercise any legitimate profession, occupation,
business, or activity without the consent of the other. Under R.A. No.
9262, if the husband prevents his wife from engaging in any legitimate
profession, occupation, business, or activity, he has committed an act of
violence punishable by the said law, except in cases where the husband
objects on valid, serious, and moral grounds.
 IV. PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE

A. GENERAL PROVISIONS

MARRIAGE SETTLEMENTS

According to Art. 74, Property relations between husband and wife are governed:
1. By marriage settlements executed before the marriage;
2. By the provisions of this Code;
3. By the local custom.

REQUISITES FOR VALIDITY

Art. 75. The future spouses may, in the marriage settlements, agree upon the re-
gime of absolute community, conjugal partnership of gains, complete separation
of property, or any other regime. In the absence of marriage settlement, or when
the regime agreed upon is void, the system of absolute community of property
as established in this Code shall govern.

MARRIAGE SETTLEMENT
● An agreement entered into by parties about to be married for the purpose
of fixing the terms and conditions of their property relations during the
marriage. This is more popularly known as “prenuptial agreement.”
● Governed by Philippine law if both parties are Filipinos, regardless of the
place of the celebration of the marriage and their residence.

Note: Marriage settlements are considered accessory to the marriage,

therefore as per Art. 81, stipulations in consideration of future marriage
and donations will be void if the marriage does not take place
 PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE 19
REQUISITES OF MARRIAGE SETTLEMENTS AND
MODIFICATIONS MADE THEREON

1. Made in writing
2. Signed by the parties
3. Executed before the marriage celebration
4. Not to prejudice third persons unless registered in the local civil registry
where the marriage is recorded and in registries of property
5. If executed by a person below 21 years, valid only when persons required
to give consent to the marriage (father, mother, or guardian, respectively)
are made parties to the agreement (Art. 78)
6. If executed by a person upon whom civil interdiction has been
pronounced or who is subject to any other disability, valid only when
his guardian appointed by a competent court is made party to the
agreement (Art. 79)

B. DONATION BY REASON OF MARRIAGE

REQUISITES OF DONATION PROPTER NUPTIAS

1. Made before the celebration of marriage;

a. In donations done during marriage, a spouse cannot donate to persons
which the other spouse may inherit from as it constitutes an indirect
donation. (Nazareno v. Birog, 45 O.G. No. 5, 1947)
b. Donation between husband and wife is prohibited during the marriage.
The prohibition applies also to those who are living together as husband
and wife without a valid marriage. The prohibition lies on the fact that
there could be undue influence
2. Made in consideration of marriage;
3. In favor of one or both of the future spouses;
4. Donor must be one of the betrothed or any third person Donations.

DONATIONS EXCLUDED

1. Ordinary wedding gifts given after the celebration of the marriage

2. Donations in favor of future spouses made before marriage but not in
consideration thereof
3. Donations made in favor of persons other than the spouses even if
founded on the intended marriage
20 PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE

WHO MAY DONATE

1. Spouses to each other

2. Parents of one or both spouses
3. Third persons to either or both spouses

RULES FOR DONATIONS BEFORE MARRIAGE

General rule: Future spouses who agree upon a regime other than ACP cannot
donate to each other more than 1/5 of their present property (excess shall be
considered void). (Art. 84)

DONATIONS OF PROPERTY SUBJECT TO ENCUMBRANCES

● Are considered valid.

● In cases of foreclosure:
○ if property value < obligation: donee shall not be liable for the
deficiency
○ if property value > obligation: donee shall be entitled to the excess
(Art. 85)

GROUNDS FOR REVOCATION OF DONATION PROPTER

NUPTIAS [Art. 86]

1. If the marriage is not celebrated or judicially declared void ab

initio, EXCEPT donations made in marriage settlements which
shall be void instead of revocable.
2. When the marriage takes place without the consent of the
parents or guardians, as required by law.
3. When the marriage is annulled, and the donee acted in bad
faith.
4. Upon legal separation, if the donee is the guilty spouse.
5. If a resolutory condition happens or is fulfilled.
6. When donee has committed an act of ingratitude: [Art. 765, CC]
a. An offense against person or property of donor, or his wife
or children under parental authority.
b. An imputation to the donor of any criminal offense, or any
act involving moral turpitude, even if proven, unless the
crime is committed against the donee, his wife or children
under his authority.
c. Refusing to support the donor, if he/she is legally required
to do so.
 PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE 21
Donations propter nuptias Ordinary donations
Does not require express Express acceptance necessary
acceptance
May be made by minors Cannot be made by minors
(Art. 78)
May include future property Cannot include future property
If present property is do- No limit to donation of present property provided
nated and property is not legitimes are not impaired
absolute community, limited
to 1/5 (Art. 84)
Grounds for revocation - in Grounds for revocation - in donation laws
Art. 86

C. SYSTEM OF ABSOLUTE COMMUNITY

GENERAL PROVISIONS
Article 88
The absolute community of property between spouses
shall commence at the precise moment that the marriage
is celebrated. Any stipulation, express or implied, for the
commencement of the community regime at any other
time shall be void. (145a)

Article 89
No waiver of rights, shares and effects of the absolute
community of property during the marriage can be
made except in case of judicial separation of property.
When the waiver takes place upon a judicial separation
of property, or after the marriage has been dissolved or
annulled, the same shall appear in a public instrument
and shall be recorded in the local civil registry where the
marriage contract is recorded as well as in the proper
registries of properties..

Article 77
The creditors of the spouse who made such waiver may
petition the court to rescind the waiver to the extent
of the amount sufficient to cover the amount of their
credits. (146a)

Article 90
The provisions on co-ownership shall apply to the
absolute community of property between the spouses
in all matters not provided for in this Chapter. (n)
22 PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE

Note:
a. Absolute Community of Property Regime refers to a special kind of
co-ownership. The husband and the wife become joint owners of all
the properties of the marriage. Hence, the provisions on co-ownership
shall apply suppletory.
b. The Absolute Community of Property Regime shall commence at the
precise moment of the celebration of marriage. It cannot commence
during the marriage.
c. The spouses cannot waive their rights, interests, shares and effects in
the absolute community during the marriage except in case of judicial
separation of property.

WHAT CONSTITUTES COMMUNITY PROPERTY

Article 91
Unless otherwise provided in this Chapter or in the mar-
riage settlements, the community property shall consist
of all the property owned by the spouses at the time
of the celebration of the marriage or acquired thereaf-
ter. (197a)

Article 92
The following shall be excluded from the community
property:
1. Property acquired during the marriage by gratuitous
title by either spouse, and the fruits as well as the in-
come thereof, if any, unless it is expressly provided by
the donor, testator or grantor that they shall form part
of the community property;
2. Property for personal and exclusive use of either
spouse. However, jewelry shall form part of the com-
munity property;
3. Property acquired before the marriage by either spouse
who has legitimate descendants by a former marriage,
and the fruits as well as the income, if any, of such
property. (201a)

Article 93
Property acquired during the marriage is presumed to
belong to the community, unless it is proved that it is
one of those excluded therefrom. (160)
 PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE 23
a. As a general rule, all property that each spouse owned before the marriage
shall automatically be considered as part of the absolute community upon
the celebration of the marriage.
b. Property acquired during the marriage using the exclusive money of a
spouse shall become part of the absolute community because there is no
provision in the chapter that is similar to this principle.

CHARGES AND OBLIGATIONS OF THE ABSOLUTE COMMUNITY

Article 94
The absolute community of property shall be liable for:
1. The support of the spouses, their common children, and legitimate
children of either spouse; however, the support of illegitimate children
shall be governed by the provisions of this Code on Support;
2. All debts and obligations contracted during the marriage by the
designated administrator-spouse for the benefit of the community, or
by both spouses, or by one spouse with the consent of the other;
3. Debts and obligations contracted by either spouse without the consent
of the other to the extent that the family may have been benefited;
4. All taxes, liens, charges and expenses, including major or minor repairs,
upon the community property;
5. All taxes and expenses for mere preservation made during marriage
upon the separate property of either spouse used by the family;
6. Expenses to enable either spouse to commence or complete
a professional or vocational course, or other activity for self-
improvement;
7. Ante-nuptial debts of either spouse insofar as they have redounded to
the benefit of the family;
8. The value of what is donated or promised by both spouses in favor
of their common legitimate children for the exclusive purpose of
commencing or completing a professional or vocational course or
other activity for self-improvement;
9. Ante-nuptial debts of either spouse other than those falling under
paragraph (7) of this Article, the support of illegitimate children of
either spouse, and liabilities incurred by either spouse by reason of
a crime or a quasi-delict, in case of absence or insufficiency of the
exclusive property of the debtor-spouse, the payment of which shall
be considered as advances to be deducted from the share of the
debtor-spouse upon liquidation of the community; and
10. Expenses of litigation between the spouses unless the suit is found to
be groundless.
If the community property is insufficient to cover the foregoing
liabilities, except those falling under paragraph (9), the spouses
shall be solidarily liable for the unpaid balance with their separate
properties. (161a, 162a, 163a, 202a-205a)
24 PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE

Article 95
Whatever may be lost during the marriage in any game of chance
betting, sweepstakes, or any other kind of gambling, whether permitted
or prohibited by law, shall be borne by the loser and shall not be charged
to the community but any winnings there, from shall form part of the
community property. (164a)

a. If the community property is not enough to pay off all the obligations
mentioned in Article 94, the separate property of either spouses will have
to answer for it and their liability is solidary.
b. Personal obligations of a spouse that the absolute community may be
compelled to pay
i. Ante-nuptial debt which did not redound to the benefit of the family
ii. Support of illegitimate children
iii. Civil liability arising from crime or quasi-delict
c. A spouse who gambles or engages in any game of chance or betting
shall bear the loss and he cannot charge it to the absolute community.
However, if he wins, the winnings will become part of the community.

OWNERSHIP, ADMINISTRATION, ENJOYMENT AND

DISPOSITION OF THE COMMUNITY PROPERTY

Article 96
The administration and enjoyment of the community property
shall belong to both spouses jointly. In case of disagreement, the
husband’s decision shall prevail, subject to recourse to the court by
the wife for proper remedy, which must be availed of within five
years from the date of the contract implementing such decision.
In the event that one spouse is incapacitated or otherwise unable to
participate in the administration of the common properties, the other
spouse may assume sole powers of administration. These powers
do not include disposition or encumbrance without authority of the
court or the written consent of the other spouse. In the absence of
such authority or consent, the disposition or encumbrance shall be
void. However, the transaction shall be construed as a continuing
offer on the part of the consenting spouse and the third person,
and may be perfected as a binding contract upon the acceptance
by the other spouse or authorization by the court before the offer
is withdrawn by either or both offerors. (206a)

Article 97
Either spouse may dispose by will of his or her interest in the
community property. (n)
 PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE 25
Article 98
Neither spouse may donate any community property without
the consent of the other. However, either spouse may, without
the consent of the other, make moderate donations from the
community property for charity or on occasions of family rejoicing
or family distress. (n)

a. Husband and wife are co-owners of the absolute community property.

As such, they shall jointly manage or administer the same except when:
i. one spouse is incapacitated; or
ii. one delegated to the other spouse the sole authority to administer
the community property.
In any case, disposition or encumbrance of property must have the other
spouse’s written consent or authority of the court; otherwise, it shall be
void. The transaction shall instead be construed as a continuing offer
which may be perfected upon obtaining such consent or authorization.
b. Decision of the husband prevails in case of disagreement on the
management and administration of the absolute community
c. A spouse cannot donate to a third person a community property without
the consent of the other spouse to protect a spouse from the reckless and
unreasonable act of generosity of the other spouse which may result in
diminution of the common property to the damage and prejudice of the
said spouse.

DISSOLUTION OF ABSOLUTE COMMUNITY REGIME

A. The absolute community terminates:

i. Upon the death of either spouse;
ii. When there is a decree of legal separation.
iii. When the marriage is annulled or declared void; or (4)
iv. In case of judicial separation of property during the marriage under
Articles 134 to 138. (175a)

B. The separation in fact between husband and wife shall not affect the
regime of absolute community
Exception:
1. The spouse who leaves the conjugal home or refuses to live therein,
without just cause, shall not have the right to be supported;
2. When the consent of one spouse to any transaction of the other is
required by law, judicial authorization shall be obtained in a summary
proceeding;
26 PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE

3. In the absence of sufficient community property, the separate

property of both spouses shall be solidarily liable for the support of the
family. The spouse present shall, upon proper petition in a summary
proceeding, be given judicial authority to administer or encumber any
specific separate property of the other spouse and use the fruits or
proceeds thereof to satisfy the latter’s share. (178a)

C. Actions that may be filed by the abandoned spouse

● If a spouse without just cause abandons the other or fails to comply
with his or her obligations to the family, the aggrieved spouse may
petition the court for receivership, for judicial separation of property or
for authority to be the sole administrator of the absolute community,
subject to such precautionary conditions as the court may impose.

● The obligations refer to marital, parental or property relations.

D. Abandonment
● A spouse is deemed to have abandoned the other when her or she has
left the conjugal dwelling without intention of returning. The spouse
who has left the conjugal dwelling for a period of three months or has
failed within the same period to give any information as to his or her
whereabouts shall be prima facie presumed to have no intention of
returning to the conjugal dwelling.
○ Abandonment implies a departure by one spouse with the avowed
intent never to return, followed by a prolonged absence without just
cause.

LIQUIDATION OF THE ABSOLUTE COMMUNITY ASSETS

AND LIABILITIES

A. Procedure upon the dissolution of the absolute community regime:

1. An inventory shall be prepared, listing separately all the properties
of the absolute community and the exclusive properties of each
spouse.
2. The debts and obligations of the absolute community shall be
paid out of its assets. In case of insufficiency of said assets, the
spouses shall be solidarily liable for the unpaid balance with their
separate properties in accordance with the provisions of the second
paragraph of Article 94.
3. Whatever remains of the exclusive properties of the spouses shall
thereafter be delivered to each of them.
 PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE 27
4. The net remainder of the properties of the absolute community shall
constitute its net assets, which shall be divided equally between
husband and wife, unless a different proportion or division was
agreed upon in the marriage settlements, or unless there has been
a voluntary waiver of such share provided in this Code. For purpose
of computing the net profits subject to forfeiture in accordance
with Articles 43, No. (2) and 63, No. (2), the said profits shall be
the increase in value between the market value of the community
property at the time of the celebration of the marriage and the
market value at the time of its dissolution.
5. The presumptive legitimes of the common children shall be
delivered upon partition, in accordance with Article 51.
6. Unless otherwise agreed upon by the parties, in the partition of the
properties, the conjugal dwelling and the lot on which it is situated
shall be adjudicated to the spouse with whom the majority of the
common children choose to remain. Children below the age of
seven years are deemed to have chosen the mother, unless the
court has decided otherwise. In case there in no such majority, the
court shall decide, taking into consideration the best interests of
said children. (n)

B. Liquidation of the estate

1. Liquidation commenced upon the termination of the marriage by
death
a. Upon the death of a spouse, the absolute community which has
been dissolved by the death of said spouse evolves into a co-
ownership of the surviving spouse and their common children
(Marigsa v Macabuntoc, 17 PHIL, 107).
2. If no judicial settlement proceeding is instituted, the surviving
spouse shall liquidate the community property either judicially or
extra-judicially within six months from the death of the deceased
spouse.
3. If upon the lapse of the six months period, no liquidation is made,
any disposition or encumbrance involving the community property
of the terminated marriage shall be void.
4. Should the surviving spouse contract a subsequent marriage
without compliance with the foregoing requirements, a mandatory
regime of complete separation of property shall govern the
property relations of the subsequent marriage. (n)

D. CONJUGAL PARTNERSHIP OF GAINS

i. Commencement
a. It commences at the precise moment of the celebration of the marriage
28 PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE

ii. Under the present law, it will only apply if there is a marriage settlement
and it is the property regime agreed upon by the parties.
iii. What comprises the conjugal partnership
a. As a rule, only those properties acquired during the marriage through
the efforts or industry of either or both spouses as well as the income
or fruits of their exclusive properties that accrue during the marriage
will comprise the conjugal partnership
iv. Rules governing
a. The rules on partnership shall likewise apply to the conjugal partnership.
v. Void provision
a. Any stipulation which excludes the partners from any share of the
profits and losses of the partnership is void

EXCLUSIVE PROPERTY OF EACH SPOUSE

1. That which is brought to the marriage as his or her own;

● a property owned by either spouses before the marriage shall remain
as his or her exclusive property as this is a property that he or she
brought to the marriage
2. That which each acquires during the marriage by gratuitous title;
3. That which is acquired by right of redemption, by barter or by exchange
with property belonging to only one of the spouses; and
4. That which is purchased with exclusive money of the wife or of the
husband. (148a)
● As a general rule, there’s a presumption that a property bought during
the marriage is conjugal.
● Exception: if the money used to buy that property is the exclusive
money of a spouse.

OWNERSHIP, ADMINISTRATION, ENJOYMENT OF

EXCLUSIVE PROPERTY
1. Rights
a. A spouse shall retain the ownership and enjoyment of his or her
exclusive property.
b. Said spouse may transfer the administration of the property to the
other spouse but the same should be done in a public instrument and
duly recorded in the registry of the property of the place where the
property is located.

2. Sale or Encumbrance of the property

a. Even if the property is under the administration of the other spouse,
it does not preclude the owner-spouse from selling or encumbering
said property without the consent of the administering spouse.
 PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE 29
3. Property involved in litigation
a. If an exclusive property is involved in litigation, only the owner-spouse
will litigate and need not include the other spouse.
b. If the action for the recovery of an exclusive property also involves
the conjugal property, the other spouse must be impleaded as party
plaintiff.
4. Donated Property
a. A property donated or left by will to both spouses during the marriage
is an exclusive property. The shares shall be equal absent a specific
designation of shares.
b. If the donation is subject to an onerous condition, the donee spouse
shall bear the cost in complying with the condition.

CONJUGAL PARTNERSHIP PROPERTY

1. Presumption
a. All property acquired during the marriage, whether the acquisition
appears to have been made, contracted or registered in the name of
one or both spouses, is presumed to be conjugal unless the contrary
is proved.
b. For this presumption to apply, it is condition sine qua non that proof
of its acquisition during the marriage is duly established (Jocson v CA,
170 SCRA 333).

2. Conjugal Properties
a. The following are conjugal partnership properties:
1. Those acquired by onerous title during the marriage at the
expense of the common fund, whether the acquisition be for the
partnership, or for only one of the spouses;
2. Those obtained from the labor, industry, work or profession of
either or both of the spouses;
3. The fruits, natural, industrial, or civil, due or received during the
marriage from the common property, as well as the net fruits from
the exclusive property of each spouse;
● the fruits of exclusive properties of either spouse is considered
conjugal only if it accrued during the marriage and the fruit is
called net fruits
4. The share of either spouse in the hidden treasure which the law
awards to the finder or owner of the property where the treasure
is found;
5. Those acquired through occupation such as fishing or hunting;
30 PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE

6. Livestock existing upon the dissolution of the partnership in excess

of the number of each kind brought to the marriage by either
spouse; and
7. Those which are acquired by chance, such as winnings from
gambling or betting. However, losses therefrom shall be borne
exclusively by the loser-spouse. (153a, 154a, 155, 159)
8. Property bought on installments paid partly from exclusive funds
from either or both spouses and partly from conjugal funds if
ownership was vested during the marriage
9. Interest falling due during the marriage on the principal amount
10. The ownership of improvements, whether for utility or adornment,
made on the separate property of the spouses at the expense of
the partnership or through the acts or efforts of either or both of
the spouses

CHARGES UPON AND OBLIGATIONS OF THE

CONJUGAL PARTNERSHIP

1. Liabilities of the Conjugal Partnership

1. The support of the spouse, their common children, and the legitimate
children of either spouse; however, the support of illegitimate children
shall be governed by the provisions of this Code on Support;
2. All debts and obligations contracted during the marriage by the
designated administrator-spouse for the benefit of the conjugal
partnership of gains, or by both spouses or by one of them with the
consent of the other;
● When the obligation becomes due, the conjugal partnership shall
be answerable for it and not the husband and the wife individually
as independent debtors, such that the concept of joint or solidary
liability, as between them, does not arise (Alipio v CA, 341 SCRA
441).
3. Debts and obligations contracted by either spouse without the consent
of the other to the extent that the family may have benefited;
4. All taxes, liens, charges, and expenses, including major or minor repairs
upon the conjugal partnership property;
5. All taxes and expenses for mere preservation made during the
marriage upon the separate property of either spouse;
6. Expenses to enable either spouse to commence or complete a
professional, vocational, or other activity for self-improvement;
 PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE 31
7. Ante-nuptial debts of either spouse insofar as they have redounded
to the benefit of the family;
8. The value of what is donated or promised by both spouses in favor
of their common legitimate children for the exclusive purpose of
commencing or completing a professional or vocational course or
other activity for self-improvement; and
9. Expenses of litigation between the spouses unless the suit is found to
groundless.

2. Solidary Liability of the Spouses

● If the conjugal partnership is insufficient to cover the foregoing
liabilities, the spouses shall be solidarily liable for the unpaid balance
with their separate properties. (161a)

3. Personal debts and fines

● The payment of personal debts contracted by the husband or the wife
before or during the marriage shall not be charged to the conjugal
properties partnership
● Exception: They redounded to the benefit of the family.
● Neither shall the fines and pecuniary indemnities imposed upon them
be charged to the partnership.
● Exception: The payment of personal debts contracted by either
spouse before the marriage, that of fines and indemnities imposed
upon them, as well as the support of illegitimate children of either
spouse, may be enforced against the partnership assets after the
responsibilities enumerated in the preceding Article have been
covered, if the spouse who is bound should have no exclusive property
or if it should be insufficient; but at the time of the liquidation of the
partnership, such spouse shall be charged for what has been paid for
the purpose above-mentioned. (163a)

4. Games of Chance or Betting

● Losses shall be borne by the loser and shall not be charged to the
conjugal partnership (164a)
32 PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE

ADMINISTRATION OF THE CONJUGAL PARTNERSHIP

PROPERTY

1. The husband and wife are joint administrators of the conjugal partnership.
a. In case one is incapacitated, the other spouse may assume the sole
power of administration
b. In case of incapacity or inability to participate of one spouse, the
powers do not include disposition or encumbrance without authority
of the court or the written consent of the other spouse
c. Where the husband sold a conjugal partnership property without the
knowledge and onset of the wise, the sale is void (Sps. Antonio Guiang
v CA, G.R. No. 125172, June 26, 1998).
d. If the sale was with the knowledge but without the approval of the
wife, thereby resulting in disagreement, such sale is annulable at the
instance of the wife who is given five years from the date the contract
implementing the decision of the husband to institute the case (Sps.
Ravina v Villa Abrille, et. al., G.R. No. 160708, October 16, 2009).

2. Donation of conjugal property

a. No donation may be made without the consent of the other
b. Either spouse, may, without the consent of the other, make moderate
donations from the conjugal partnership property for charity or on
occasions of family rejoicing or family distress

DISSOLUTION OF CONJUGAL PARTNERSHIP REGIME

I. When Conjugal Partnership Terminates

1. Upon the death of either spouse;
2. When there is a decree of legal separation;
3. When the marriage is annulled or declared void; or
4. In case of judicial separation of property during the marriage under
Articles 134 to 138. (175a)

II. Effects of Separation In Fact

1. The separation in fact between husband and wife shall not affect the
regime of conjugal partnership, except that:
● The spouse who leaves the conjugal home or refuses to live therein,
without just cause, shall not have the right to be supported;
● When the consent of one spouse to any transaction of the other
is required by law, judicial authorization shall be obtained in a
summary proceeding;
 PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE 33
● In the absence of sufficient conjugal partnership property, the
separate property of both spouses shall be solidarily liable for the
support of the family. The spouse present shall, upon petition in a
summary proceeding, be given judicial authority to administer or
encumber any specific separate property of the other spouse and
use the fruits or proceeds thereof to satisfy the latter’s share. (178a)

III. Actions that may be filed by the abandoned spouse

● If a spouse without just cause abandons the other or fails to
comply with his or her obligations to the family, the aggrieved
spouse may petition the court for
1. Receivership
2. Judicial separation of property
3. Authority to be the sole administrator of the absolute
community

LIQUIDATION OF THE CONJUGAL PARTNERSHIP

ASSETS AND LIABILITIES

I. PROCEDURE FOR LIQUIDATION

Upon the dissolution of the conjugal partnership regime, the following

procedure shall apply:
1. An inventory shall be prepared, listing separately all the properties of
the conjugal partnership and the exclusive properties of each spouse.
2. Amounts advanced by the conjugal partnership in payment of personal
debts and obligations of either spouse shall be credited to the conjugal
partnership as an asset thereof.
3. Each spouse shall be reimbursed for the use of his or her exclusive
funds in the acquisition of property or for the value of his or her
exclusive property, the ownership of which has been vested by law in
the conjugal partnership.
4. The debts and obligations of the conjugal partnership shall be paid
out of the conjugal assets. In case of insufficiency of said assets, the
spouses shall be solidarily liable for the unpaid balance with their
separate properties, in accordance with the provisions of paragraph (2)
of Article 121.
5. Whatever remains of the exclusive properties of the spouses shall
thereafter be delivered to each of them.
6. Unless the owner had been indemnified from whatever source, the
loss or deterioration of movables used for the benefit of the family,
34 PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE

belonging to either spouse, even due to fortuitous event, shall be paid

to said spouse from the conjugal funds, if any.
7. The net remainder of the conjugal partnership properties shall
constitute the profits, which shall be divided equally between husband
and wife, unless a different proportion or division was agreed upon in
the marriage settlements or unless there has been a voluntary waiver
or forfeiture of such share as provided in this Code.
8. The presumptive legitimes of the common children shall be delivered
upon the partition in accordance with Article 51.
9. In the partition of the properties, the conjugal dwelling and the lot on
which it is situated shall, unless otherwise agreed upon by the parties,
be adjudicated to the spouse with whom the majority of the common
children choose to remain. Children below the age of seven years are
deemed to have chosen the mother, unless the court has decided
otherwise. In case there is no such majority, the court shall decide,
taking into consideration the best interests of said children. (181a,
182a, 183a, 184a, 185a)

Barrido v Nonato
G.R. No. 176492, October 20, 2014

The procedure in the liquidation of conjugal partnership under Article

129 of the Family Code applies only to valid and voidable marriages,
Thus, if the marriage is void on the ground of psychological incapacity of
a party under Article 36, the property relation of the parties is governed
by co-ownership under Article 147 of the Family Code. The liquidation
shall be done in accordance with the liquidation of co-ownership in the
Civil Code.

SEPARATION OF PROPERTY OF THE SPOUSES AND

ADMINISTRATION OF COMMON PROPERTY BY ONE
SPOUSE DURING THE MARRIAGE

I. Judicial Separation of Property During Marriage

A. If the spouses did not execute a written agreement regarding their
property regime prior to the marriage, they can no longer change it
after the marriage ceremony has taken place unless they have secured
judicial approval.

II. Grounds for Judicial Separation of Property

A. That the spouse of the petitioner has been sentenced to a penalty
which carries with it civil interdiction;
B. That the spouse of the petitioner has been judicially declared an
absentee;
 PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE 35
C. That loss of parental authority of the spouse of petitioner has been
decreed by the court;
D. That the spouse of the petitioner has abandoned the latter or failed
to comply with his or her obligations to the family as provided for in
Article 101;
E. That the spouse granted the power of administration in the marriage
settlements has abused that power; and
F. That at the time of the petition, the spouses have been separated in
fact for at least one year and reconciliation is highly improbable.

III. Voluntary Separation of the Property

A. Even without any grounds, the husband and wife may dissolve their
conjugal partnership or absolute community by mutual agreement.
B. The agreement for voluntary separation of property takes effect
from the time of the judicial order decreeing the separation of the
properties and not from the signing of the agreement (Toda, Jr. v CA,
183 SCRA 713).

SEPARATION OF PROPERTY
When it applies Agreed upon in the marriage settlements by the
spouses
Mandatory under Arts. 103 & 130, FC (subsequent
marriages contracted by a surviving spouse with-
out judicial settlement of previous property re-
gime)
Judicial separation of property (Voluntary or just
cause)
Default property regime when there is reconcilia-
tion between spouses after judicial separation of
property
What it consists of Present or future property or both
Each spouse’s earnings from his or her own pro-
fession, business, or industry
Natural, industrial or civil fruits of spouse’s sepa-
rate properties
May be total or partial. If partial, property not con-
sidered separate is presumed to pertain to the
ACP
Liabilities Family expenses: Both spouses are liable in pro-
portion to their income; if insufficient, based on
the current value of their separate properties
Creditors for family expenses: Spouses solidarily
liable
36 PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE

Ownership, Spouses may own, dispose, possess, and admin-

administration, ister separate estates without the consent of the
enjoyment, and other
disposition Administration of exclusive properties may be
transferred between spouses when:
1. One spouse becomes the other spouse’s
guardian
2. One spouse is judicially declared an ab-
sentee
3. One spouse is given the penalty of civil
interdiction
4. One spouse becomes a fugitive
Conveyance between the spouses is allowed un-
der Art. 1490, NCC.

E. REGIME OF SEPARATION OF PROPERTY

I. Each spouse shall own, administer, use, and enjoy his or her exclusive
property to the exclusion of the other. Each spouse has control and
ownership of his or her own properties which will include “all earnings
from his or her profession, business or industry and all fruits, natural,
industrial or civil, due or received during the marriage from his or her
separate property.” Expenses of the family shall be shouldered by
the spouses in proportion to their income, or, in case of insufficiency
or default thereof, to the current market value of their separate
properties.

F. PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE

I. ARTICLE 147
A. They have an informal civil relationship that entitles the parties
to some rights.
B. Presumption that properties acquired while they lived together
have been obtained by their joint efforts, work or industry, and
shall be owned by them in equal shares.

1. For purposes of this Article, a party who did not participate

in the acquisition by the other party of any property shall be
deemed to have contributed jointly in the acquisition thereof
if the former’s efforts consisted in the care and maintenance
of the family and of the household.
 PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE 37
C. Co-owned properties
1. Properties acquired while they lived together
a) PRESUMPTION: obtained by joint efforts, work or industry,
hence, co-owned
b) However, a party who did not participate in the
acquisition shall be deemed to have contributed jointly
in the acquisition if the efforts consisted in the care and
maintenance of the family and of the household
D. Forfeiture of Share of Bad Faith Spouse
1. In favor of the common children or their descendants
2. In the absence of (1), in favor to the respective surviving
descendants (children of guilty spouse)
3. Innocent spouse
E. Liquidation Processes
1. In accordance with the rules of co-ownership in so far as not
in conflict with Art. 147 or 148

II. ARTICLE 148

A. All properties acquired during the duration of the relationship are
presumed to be separately owned.
1. Only those acquired by both of the parties through their actual
joint contribution of money, property, or industry are co-owned.
2. There must be an actual contribution. Otherwise, there is no
co-ownership and no presumption of equal shares.
3. Actual contribution is a condition sine qua non
4. For the share of the spouse who is validly married to another, it
shall belong to the ACP or CPG of such valid marriage.

Luna v Zaballero-Luna
G.R. No. 171914, July 23, 2014

When the marriage is void because one party has the legal im-
pediment to marry the other is in the case of bigamous marriage,
the property relation of the parties shall be governed by co-own-
ership under Article 148 of the Famile Code where actual contri-
bution must be proven.
 V. THE FAMILY

A. THE FAMILY AS AN INSTITUTION

I. Filipino Family as foundation of the Nation
a. Family is considered as the foundation of the nation and a basic
social institution which public policy cherishes and protects.
b. The 1987 Constitution provides that “the State recognizes the
sanctity of family life and shall protect and strengthen the family as
a basic social institution (Sec. 12, Art. II)
II. Family Relations
a. Family relations include those:
1. Between husband and wife;
2. Between parents and children;
3. Among brothers and sisters, whether of the full or half-blood.
(217a)
b. The enumeration under this article should be construed strictly. Any
person who is not included in the enumeration is not considered
within the term of “family relation”.
III. Earnest Efforts to Compromise
a. In order to preserve the unity of the family, the law requires that if a
person files a case against a member of his own family, he must first
exert earnest efforts to settle the matter amicably; otherwise, the
suit is dismissible.
1. The Supreme Court ruled that a suit filed by the plaintiff against
his sister-in-law and nephews and nieces is not a suit between
the members of the same family.
 THE FAMILY 39
Hence, the requirement that earnest efforts must be employed to
reach an amicable settlement is no longer required. (Gayon v Gayon,
36 SCRA 104).
b. The failure to exert earnest efforts to settle the matter amicably
in a suit between the members of the same family, as a ground to
dismiss the case, must be alleged before the filing of an answer.

B. THE FAMILY HOME

I. What Constitutes Family Home
A. The family home refers to the house and lot where the family resides.
It is constituted by the husband and wife or by an unmarried head of
the family. Residing in the family home is a real right.
B. Deemed constituted the moment the family resides therein. Both
the house and the land where it stands are owned by the husband or
wife or by the unmarried head of the family
1. Houses and lots that were built before the effectivity of the Family
Code, but were not constituted either judicially or extrajudicially
under the provisions of the Civil Code, are still considered as
family homes. However, these houses are considered as family
homes only upon the effectivity of the FC and not at the time
they were built (Augusto v Breva, G.R. No. 86355, May 31, 1990).
C. The family home cannot be constituted by the husband or wife alone
II. Exempt from Execution
A. The family home shall be exempt from execution, forced sale or
attachment except:
1. For nonpayment of taxes;
2. For debts incurred prior to the constitution of the family home;
3. For debts secured by mortgages on the premises before or after
such constitution; and
4. For debts due to laborers, mechanics, architects, builders,
materialmen and others who have rendered service or furnished
material for the construction of the building. (243a)
B. The exemption is effective from the time of the constitution of the
family home as such. However, the exemption is not absolute.
C. The right of exemption is a personal privilege granted debtor and
should be claimed and proven by him before the public auction.
Failure of the debtor to prove that the house and lot was their family
home bars him from invoking the exemption (De Mesa v Acero, et. al.,
G.R. No. 185064, January 16, 2012).
40 THE FAMILY
III. Beneficiaries
A. The beneficiaries of a family home are:
1. The husband and wife, or an unmarried person who is the head
of a family; and
2. Their parents, ascendants, descendants, brothers and sisters,
whether the relationship be legitimate or illegitimate, who are
living in the family home and who depend upon the head of the
family for legal support. (226a)

B. Requisites that must concur to be considered a beneficiary:

1. they must be among the relationships enumerated in Article 154
of the Family Code
2. they live in the family home
3. they are dependent for legal support upon the head of the family

IV. Disposition of Family Home

A. As a limitation on the rights of disposition of owners, the law
specifically provides that the family home cannot be sold,
alienated, donated, assigned or encumbered without the written
consent of the following:
1. person constitution the same
2. the latter’s spouse
3. a majority of the beneficiaries of legal age
 VI. PATERNITY AND FILIATION

I. Paternity and Filiation refer to the relationship or tie which exists between
parents and their children
A. Paternity- refers to the status of the father in relation his his child
B. Maternity- refers to the status of the mother in relation to her child
C. Filiation- refers to the status of a child in relation to his parents

II. Under the New Family Code, there are only two classes of children:
A. Legitimate Children
B. Illegitimate Children
C. Legitimated Children

III. The filiation of children may be by nature or by adoption

A. Natural Filiation- the relationship of the child to his parents is by blood
B. Filiation by Adoption- artificial in nature and the relationship is only
created by law

A. LEGITIMATE CHILDREN
I. The children who are born during the lawful marriage

II. Child Born of Artificial Insemination

A. Considered as legitimate provided the following requisites are
present:
1. both spouses have authorized in writing the performance of
artificial insemination on the wife
2. if the husband had no knowledge of the artificial insemination,
he ratified it upon knowledge
42 PATERNITY AND FILIATION

3. the instrument containing the agreement of the parties must

be executed before the birth of the child and shall be recorded
in the civil registry together with the birth certificate of the
child
B. No criminal liability for adultery of a wife artificially inseminated
without the consent of the husband (US v Abad Santos, 36 PHIL
243).

III. Ways to Impugn Legitimacy of a Child

A. That it was physically impossible for the husband to have sexual
intercourse with his wife within the first 120 days of the 300
days which immediately preceded the birth of the child because
of:
● the presumption on the first ground becomes conclusive in
the absence of proof that there was physical impossibility of
access between the spouses in the first 120 days of the 300
days which immediately preceded the birth of the child
1. the physical incapacity of the husband to have sexual
intercourse with his wife;
2. the fact that the husband and wife were living separately
in such a way that sexual intercourse was not possible; or
3. serious illness of the husband, which absolutely prevented
sexual intercourse;
B. That it is proved that for biological or other scientific reasons,
the child could not have been that of the husband, except in
the instance provided in the second paragraph of Article 164; or
● The fact that the husband had undergone vasectomy is not
enough proof to rebut the presumption of legitimacy of
the child sired by his wife because it is still possible, despite
the vasectomy, the sperm can re-channel itself and effect a
fertilization.
C. That in case of children conceived through artificial insemination,
the written authorization or ratification of either parent was
obtained through mistake, fraud, violence, intimidation, or
undue influence. (255a)

IV. DNA
A. The latest and most effective method of determining filiation is
through DNA test
B. The process for DNA paternity testing had an accuracy rate of
99.99% in establishing paternity. It was first accepted as evidence
by the Supreme Court in the case of Tijing v CA.
 PATERNITY AND FILIATION 43
V. Rules Governing in Case of Two Marriages
A. If the marriage is terminated and the mother contracted another
marriage within three hundred days after such termination of
the former marriage, these rules shall govern in the absence of
proof to the contrary:
1. A child born before one hundred eighty days after the
solemnization of the subsequent marriage is considered to
have been conceived during the former marriage, provided
it be born within three hundred days after the termination of
the former marriage;
2. A child born after one hundred eighty days following the
celebration of the subsequent marriage is considered to have
been conceived during such marriage, even though it be born
within the three hundred days after the termination of the
former marriage. (259a)

B. PROOF OF FILIATION
I. Primary Proof of Filiation
A. The record of birth appearing in the civil register or a final judgment;
or proof that comes from an official government source
● It has been held that if the alleged father did not sign in the
birth certificate, the placing of his name by the mother, or
doctor or registrar, is incompetent evidence of paternity of
said child (Berciles vs. GSIS, 128 SCRA 53; Reyes vs. Court of
Appeals, 135 SCRA 439).
B. An admission of legitimate filiation in a public document or
a private handwritten instrument and signed by the parent
concerned.

II. Secondary Proof of Filiation

A. The open and continuous possession of the status of a legitimate
child;
1. Open and continuous possession of the status of a legitimate
child does not mean that the concession of status shall
continue forever but only that it shall not be of an intermittent
character while it continues. There must be a showing of the
permanent intention of the supposed father to consider the
child as his own, by continuous and clear manifestation of
paternal affection and care (Mendoza vs. Court of Appeals, 201
SCRA 675).
B. Any other means allowed by the Rules of Court and special laws.
44 PATERNITY AND FILIATION

III. Action to Claim Legitimacy

A. An action to claim legitimacy may be brought by the child anytime
during his or her lifetime. The heirs of the child may bring the
action if the child died during minority or in the state of insanity.
In these cases, the heirs have only five years from the death of
the child within which to institute the action

IV. Rights of the Legitimate Children

A. Bear the surname of his father and mother
B. Receive support from his parents, ascendants or brother and
sisters,
C. Be entitled to the legitime and other successional rights

C. ILLEGITIMATE CHILDREN
I. The children born out of wedlock or inside a void marriage
A. Exceptions:
1. Children of marriages void under Art. 36 (psychological
incapacity); and
2. Under Art. 53 (subsequent marriages which did not comply
with Art. 52)

II. Action for Claiming Illegitimate Filiation

A. An illegitimate child may prove his illegitimate filiation only during
the lifetime of his putative father if his evidences of filiation are
only the secondary proofs of filiation
1. However, if the child was born before the effectivity of the
Family Code on August 3, 1988, the law that will govern is the
Civil Code of the Philippines which provides that an illegitimate
child whose putative father dies during his minority, has four
years upon reaching the age of majority within which to file
an action to prove his filiation. This is a vested right which
cannot be removed by a new law; thus, a legitimate child may
still invoke this right even if his putative father died after the
effectivity of the new Family Code (Bernabe vs. Alejo, January
21, 2002).

III. Surname of Mother

A. Illegitimate children shall use the surname of their mother
because only maternity is certain
B. The passage of RA 9255 now allows illegitimate children to carry
the surname of their putative father if acknowledged by the latter
 PATERNITY AND FILIATION 45
D. LEGITIMATED CHILDREN
I. Conceived and born outside of wedlock to parents who, at the time
of the conception of the child, were not disqualified by any legal
impediment to marry each other and said parents subsequently
entered into a lawful marriage

II. Requirements for Legitimation

A. The child was conceived and born outside of wedlock.
B. The parents do not suffer any legal impediments to marry each
other at the time of the conception of the child.
C. The parents subsequently enters into a valid marriage.

III. Rights
A. Entitled to the same hereditary right and shall carry the surname
of the father.
 VII. ADOPTION

I. Repealed Provisions
A. The provisions on Adoption found in Article 183 to 193 (Title VII) of
the Family Code has already been repealed by R.A. 8552 approved
on February 25, 1998 by Pres. Fidel V. Ramos. Furthermore, there
is another law which amended our law on adoption and that is the
Inter-Country Adoption Law of 1995 or R.A. 8043 approved by
Pres. Ramos on June 7, 1995. Thus, our present law on adoption is
now primarily governed by R.A. 8552 and R.A. 8043.

II. Adoption is a juridical act, a proceeding in rem which creates between

two persons a relationship similar to that which results from legitimate
paternity and filiation. (Lazatin v. Campos, G. R. No. L-43955-56, 1979)

III. Adoption is an artificial process of establishing a relationship of parent

and child between persons who are generally not related by nature.
This process is done by law, hence, adoption is purely a statutory
creation. It is therefore important that all requirements for adoption
under the law must be strictly complied with; otherwise, an adoption
decree issued by the court without complying with such requirements
will be null and void.
 ADOPTION 47
Republic vs. Court of Appeals & Zenaida Bobiles
205 SCRA, 356

The Supreme Court ruled that adoption statutes, as well as matters of

procedure leading up to adoption, can be liberally construed to carry
out the beneficent purposes of adoption and for as long as there is sub-
stantial compliance with the mandatory requirements under the law.
As a matter of policy of the state, all measures to maintain the natural
parent’s authority and custody of their children must be encouraged
and implemented. Only when such efforts prove to be insufficient and
no appropriate placement or adoption within the child’s extended fam-
ily is available shall adoption by an unrelated person be considered.

Our present law on adoption holds the paramount interest and welfare of the
child to be adopted and is designed to provide these children a brighter future.

REPUBLIC ACT NO. 8552 Domestic Adoption Act of 1998

A. Who can adopt

1. Filipino Citizens [Sec. 7(a), RA 8552]
a. Of legal age
b. With full civil capacity and legal rights
c. Of good moral character and has not been convicted of any crime
involving moral turpitude
d. Emotionally and psychologically capable of caring for children
e. At least sixteen (16) years older than adoptee, except when adopter
is biological parent of the adoptee or is the spouse of the adoptee’s
parent
f. In a position to support and care for his/her children in keeping with
the means of the family
g. Has undergone pre-adoption service

2. Aliens [Sec. 7(b), RA 8552]

Same for Filipinos provided further that:
a. His/her country has diplomatic relations with the Philippines
b. Has been living in the Philippines for 3 continuous years prior to the filing
of application and maintains such residence until the decree is entered
Note: absences not exceeding 60 days per 1 year for professional, business,
or emergency reasons are allowed
48 ADOPTION

c. Has been certified by his/her diplomatic or consular office or any

appropriate government agency that he/she has the legal capacity to
adopt in his/her country
d. His/her government allows the adoptee to enter his/her country as his/
her adoptee and reside there permanently as an adopted child
e. Has submitted all the necessary clearances and such certifications as
may be required

Requirements of residency and certification of legal capacity may be waived

under the following circumstances:
a. Adopter is a former Filipino Citizen who seeks to adopt a relative within
the 4th degree of consanguinity or affinity.
b. Adopter seeks to adopt the legitimate child of his/her Filipino spouse
c. Adopter is married to a Filipino Citizen and seeks to adopt jointly with
his/her spouse a relative within the 4th degree of consanguinity or
affinity of the Filipino spouse
Note: Requirements may not be waived for an alien married to a former
Filipino

3. Guardians [Sec. 7(c), RA 8552]

With respect to their wards, after the termination of the guardianship and
clearance of his/her accountabilities.
General Rule: Husband and wife must jointly adopt
Exception [Sec. 7]:
a. One spouse seeks to adopt the legitimate child of the other
b. One spouse seeks to adopt his own illegitimate child, provided that the
other spouse has signified their consent thereto
c. Spouses are legally separated from each other

B. Who can be adopted

I. Those who can be adopted [Sec. 8, RA 8552]:
a. Minor (below 18) who has been administratively or judicially declared
available for adoption
b. Legitimate son/daughter of one spouse by another
c. Illegitimate son/daughter by a qualified adopter to improve the child’s
status to that of legitimacy
d. A person of legal age if, prior to the adoption, said person has been
consistently considered and treated by the adopter(s) as his/her child
since minority
 ADOPTION 49
e. A child whose previous adoption has been rescinded
f. A child whose biological or adoptive parent(s) has died, provided that
no proceedings shall be initiated within 6 months from the time of
death of said parent(s)

II. Exceptions to the Requirement of a Certification that the Child is

Available for Adoption [Sec. 4, RA 8552]:
a. Adoption of an illegitimate child by his/her biological parent;
b. Adoption of a child by his/her stepparent;
c. Adoption by a relative within the 4th civil degree by consanguinity or
affinity

III. Persons whose written consent is necessary for adoption [Sec. 9, RA

8552]
1. The prospective adoptee if 10 years or older
2. The prospective adoptee’s biological parents, legal guardian or the
government instrumentality or institution that has custody of the
child
3. The prospective adopters’ legitimate and adopted children who are
10 years or older
4. The prospective adopters’ illegitimate children, if any, who are 10
years or older and living with them
5. The spouse, if any, of the person adopting or to be adopted.
Note: A decree of adoption shall be effective as of the date the original
petition was filed. It also applies in case the petitioner dies before the
issuance of the decree of adoption to protect the interest of the adoptee.
[Sec. 13, RA 8552]

C. Foundlings
Foundling shall refer to a deserted or abandoned infant or a child found, with
parents, guardian, or relatives being unknown, or a child committed in an
orphanage or charitable or similar institution with unknown facts of birth and
parentage and registered in the Civil Register as a foundling. [Sec. 3(h), Rules
And Regulations To Implement The Domestic Adoption Act Of 1998]

I. When is a child considered a foundling?

It shall be the duty of the DSWD or the child-placing or child-caring agency
which has custody of the child to exert all efforts to locate his/her unknown
biological parent(s). If such efforts fail, the child shall be registered as a
foundling and subsequently be the subject of legal proceedings where
he/she shall be declared abandoned. [Sec. 5, RA 8552]
50 ADOPTION

If efforts to locate the child’s parent/s fail, the child shall be registered as
a foundling and within three (3) months from the time he/she is found,
be the subject of legal proceedings where he/she shall be declared
abandoned. [Sec. 5, Rules And Regulations To Implement The Domestic
Adoption Act Of 1998]

Poe-Llamanzares v. COMELEC
G.R. No. 22169 (2016)

Domestic laws on adoption also support the principle that foundlings are
Filipinos. These laws do not provide that adoption confers citizenship upon
the adoptee. Rather, the adoptee must be a Filipino in the first place to be
adopted. The Inter-Country Adoption Act (R.A. No. 8043), the Domestic
Adoption Act (R.A. No. 8552) and the Court’s A.M. No. 02- 6-02-SC or the
“Rule on Adoption,” all expressly refer to “Filipino children” and include
foundlings as among Filipino children who may be adopted.

D. Pre-Adoption Procedures
a. Voluntary commitment by biological parent(s) wanting to put their child
up for adoption
1. Counseling on their options other than adoption
2. Explaining to them the implications of losing their parental authority
over the child
3. Continuing services shall be provided after relinquishment to cope
with feelings of loss, etc. and other services for the reintegration to the
community of the biological parent(s)
4. Biological parent(s) who decided to put the child for adoption shall sign
the Deed of Voluntary Commitment (DVC), which shall be rescissible
within 3 months from signing of the same

b. Involuntary commitment of abandoned/neglected child

1. Filing of a petition at Regional DSWD in the form of an affidavit and
with the required supporting documents
2. Posting of the petition, then recommendation by the Regional Director
of the DSWD (5 days each)
3. Issuance of certification by DSWD Secretary declaring the child
legally available for adoption within 3 months following involuntary
commitment

c. Required supporting documents for a petition for the declaration of

involuntary commitment:
1. Social Case Study Report by DSWD / LGU / institution charged with
child’s custody
 ADOPTION 51
2. Proof of efforts to locate the child’s parents/known relatives
a. Written certification that a local/national radio/TV case was aired
on 3 different zoccasions
b. Publication in 1 newspaper of general circulation
c. Police report/barangay certification of due diligence
d. Returned registered mail to last known address of parents
3. Birth certificate, if available
4. Recent photo and photo upon abandonment of child

E. Adoption Procedures
Note: DSWD must certify the child as legally available for adoption as a
prerequisite for adoption proceedings. [RA 9253]
● After the decree of adoption, the court may also issue a travel authority,
if needed.
● The case study report by the DSWD/LGU is indispensable. Without it, the
adoption decree shall be void. (DSWD v. Judge Belen, RTJ-96-1362, 1997)

F. Who may not adopt

Those who may not adopt [Art. 184, FC, amended by RA 8552]:
1. The guardian, with respect to the ward, prior to the approval of the final
accounts rendered upon the termination of the guardianship
2. Any person convicted of a crime of moral turpitude

G. Rights of an Adopted Child

1. Parental Authority [Sec. 16, RA 8552]
Except in cases where the biological parent is the adopter’s spouse, all legal
ties between biological parent and adoptee shall be severed, and the same
shall then be vested on the adopters.
The general effect of the adoption decree is to transfer to the adopting
parents the parental authority of the parents by nature, as if the child had
been born in lawful wedlock.
The relationship established by adoption is limited to the adopting parent
and does not extend to his other relatives, except as expressly provided by
law.
The law does not prohibit the biological parent(s) from entering an agreement
with the adopters on post adoption visitation. Neither do our laws compel
the adopters to grant visitation rights if such is not beneficial to the child.

2. Legitimacy [Sec. 17, RA 8552]

The adoptee shall be considered the legitimate son/daughter of the
adopters for all intents and purposes, and as such is entitled to all rights and
obligations provided by law to legitimate children born to them without
discrimination of any kind.The adoptee is entitled to love, guidance, and
support in keeping with the means of the family.
52 ADOPTION

3. Succession [Sec. 18, RA 8552]

In legal and intestate succession, the adopter and the adoptee shall have
reciprocal rights of succession without distinction from legitimate filiation.
However, if the adoptee and his/her biological parents had left a will, the
law on testamentary succession shall govern.
Legal or intestate succession to the estate of the adopted shall be governed
by the following rules:
a. Legitimate and illegitimate children, descendants and the surviving
spouse of the adoptee shall inherit in accordance with the ordinary rules
of legal/intestate succession.
b. When the surviving spouse OR illegitimate children AND adopters
concur, they shall inherit on a 50-50 basis.
c. When the surviving spouse AND illegitimate children AND adopters
concur, they shall inherit on a 1/3-/1/3-1/3 basis.
d. When only adopters survive, they shall inherit 100% of the estate.
e. When only collateral blood relatives survive, ordinary rules of legal or
intestate succession shall apply. [Art. 190 (as amended), FC]

Between adoptee and adopter

The relationship created by the adoption is between only the adopting
parents and the adopted child and does not extend to the blood relatives
of either party. [Sayson v. CA, supra]

Between adoptee and adopter’s relatives

The relationship created by adoption is exclusively between the adopter
and the adopted. Hence, the adopted child has no right to inherit from the
relatives of his adopted parents.

While an adopted child has the same rights as a legitimate child, these rights
do not include the right of representation. The relationship created by the
adoption is between only the adopting parents and the adopted child and
does not extend to the blood relatives of either party. [Sayson v. CA, supra]

Between adoptee and biological parents

One effect of adoption is that the adopted shall remain an intestate heir of
his parents and other blood relatives. [Art. 189, FC]

Since many biological parents relinquish their child for adoption by reason
of poverty or emotional unpreparedness, their biological child should not
be prevented from inheriting if they were able to improve their lot. There
is nothing that precludes the biological parents to give their biological child
his or her rightful share in their last will and testament.

4. Name [Art. 365, CC.]

An adopted child shall bear the surname of the adopter.
 ADOPTION 53
Republic v. CA and Wong
G.R. No. 97906 (1992)

While an effect of adoption is that the adoptee shall bear the surname of the adopter,
the change of surname of the adopted child is more an incident rather than the
object of adoption proceedings. The purpose of adoption is to effect a new status
of relationship between the child and his or her adoptive parents, and the change of
name is more of an incident only than the object of the proceeding.

Sec. 13 of RA 8552 allows the change of first name to be instituted in the same
proceeding as the adoption: “the decree of adoption shall state the name by
which the child is to be known.”

In re: Adoption of Stephanie Nathy Astorga Garcia

G.R. No. 148311 (2005

The law is silent as to what middle name the adoptee may use but the SC has held
that an adoptee is entitled to all the rights provided by law to a legitimate child, in-
cluding the right to bear the surname of her father and mother.

5. Nationality
Adoption does not confer citizenship of the adopter to the adopted. Under
Sec. 3, Art. IV of the Constitution, Philippine citizenship may be lost/
acquired [only] in the manner provided by law. The adoption of an alien is
not a means of acquiring Philippine citizenship. A Filipino adopted by an
alien does not lose his Philippine citizenship.
The right to confer citizenship belongs to the State (political) and cannot
be granted by a citizen through adoption. Adoption creates a relationship
between the adopter and adoptee, not between the State and the adoptee.
[Tolentino]

H. Rescission of Adoption
Adoptee may file action for rescission, with the assistance of DSWD if he/
she is a minor or over 18 but incapacitated, based on the following grounds
[Sec. 19, RA 8552]:
1. Repeated physical and verbal maltreatment by adopters despite having
undergone counseling
2. Attempt on life of adoptee
3. Sexual assault or violence
4. Abandonment or failure to comply with parental obligations

Adoption, being in the best interest of the child, shall not be subject to
rescission by the adopter. However, the adopter may disinherit the child
based on causes enumerated in Art. 919 of CC:
1. Conviction of an attempt on the life of the adopter
2. Having accused, without grounds, the adopter of a crime punishable by
imprisonment for more than 6 years
54 ADOPTION

3. Conviction of adultery/concubinage with the adopter’s spouse

4. Having caused the adopter to make or change a will by force, intimidation
or undue influence
5. Refusal without just cause to support the adopter
6. Maltreatment of the adopter by word/deed
7. Living a dishonorable/disgraceful life
8. Conviction of a crime which carries with it the penalty of civil interdiction

Effects of Rescission [Sec. 20, RA 8552]:

1. Restoration of parental authority of the adoptee’s biological parent(s)
OR the legal custody of the Department if the adoptee is a minor or
incapacitated.
2. Extinguishing of the reciprocal rights and obligations of the adopters and
adoptee.
3. Cancellation of the new birth certificate of the adoptee as ordered by the
court and restoration of the adoptee’s original birth certificate.
4. Reverting successional rights to its status prior to adoption but not only as
of the date of judgment of judicial rescission.
5. Vested rights acquired prior to judicial rescission shall be respected.

Note: Rescission contemplates a situation where the adoption decree remains

valid until its termination.

I. Rectification of Simulated Birth

Simulation of birth is the tampering of the civil registry making it appear in
the birth records that a certain child was born to a person who is not his or
her biological mother, causing such child to lose his or her true identity and
status. [Sec. 3(j), RA 8552]
Any person who shall cause the fictitious registration of the birth of a child
under the name(s) of a person who is not his or her biological parents shall
be penalized for simulation of birth with the penalty of prision mayor
in its medium period and a fine not exceeding Fifty thousand pesos
(P50,000.00). [Sec. 21(b), RA 8552]
However, subject to certain requirements, Republic Act No. 11222 or the
Simulated Birth Rectification Act grants amnesty to persons who made it
appear that they are the biological parents of a child whom they consistently
treated as their own, and the simulation of birth was for the best interest
of the child.

Three-in-one Procedure
● Correction of entries in birth certificate
● Deed of Voluntary Commitment or
● Declaration of abandonment
● Adoption decree
 ADOPTION 55
Sec. 8 of the SC Rule on Adoption requires that the petition that seeks to
rectify a simulated birth allege that:
1. Petitioner is applying for rectification of a simulated birth;
2. The simulation of birth was made prior to the date of effectivity of RA
8552 and the application for rectification of the birth registration and
the petition for adoption were filed within five years from said date;
3. The petitioner made the simulation of birth for the best interests of the
adoptee; and
4. The adoptee has been consistently considered and treated by the
petitioner as his own child.

REPUBLIC ACT 8043: Law on Inter-Country Adoption

Inter-Country Adoption refers to the sociolegal process of adopting a

Filipino child by a foreigner or a Filipino citizen permanently residing abroad
where the petition is filed, the supervised trial custody is undertaken, and
the decree of adoption is issued outside the Philippines.

A. When Allowed
No child shall be matched to a foreign adoptive family unless it can be
satisfactorily shown that the child cannot be adopted locally [Sec. 11,
RA 8043].

B. Who Can Adopt

Sec. 9, RA 8043. Any alien or Filipino citizen permanently residing abroad may file an
application for inter-country adoption of a Filipino child if he/she:
(a) Is at least twenty-seven (27) years of age and at least sixteen (16) years older than
the child to be adopted, at the time of application unless the adopter is the parent
by nature of the child to be adopted or the spouse of such parent;
(b) If married, his/her spouse must jointly file for the adoption;
(c) Has the capacity to act and assume all rights and responsibilities of parental au-
thority under his national laws, and has undergone the appropriate counseling
from an accredited counselor in his/her country;
(d) Has not been convicted of a crime involving moral turpitude;
(e) Is eligible to adopt under his/her national law;
(f) Is in a position to provide the proper care and support and to give the necessary
moral values and example to all his children, including the child to be adopted;
(g) Agrees to uphold the basic rights of the child as embodied under Philippine laws,
the U.N. Convention on the Rights of the Child, and to abide by the rules and reg-
ulations issued to implement the provisions of this Act;
(h) Comes from a country with whom the Philippines has diplomatic relations and
whose government maintains a similarly authorized and accredited agency and
that adoption is allowed under his/her national laws; and
(i) Possesses all the qualifications and none of the disqualifications provided herein
and in other applicable Philippine laws.
56 ADOPTION

C. Who Can be Adopted

1. Only a legally-free child may be the subject of inter-country adoption
[Sec. 8].
● A legally-free child is one who has been voluntarily or involuntarily
committed to the DSWD of the Philippines, in accordance with
the Child and Youth Welfare Code [Sec. 3(f)].
2. A Filipino child [Sec. 3(a)]
3. Below 15 years old [Sec. 3(b)]
In order that such child may be considered for placement, the
following documents must be submitted to the Board:
1. Child study
2. Birth Certificate / Foundling Certificate
3. Deed of Voluntary Commitment / Decree of Abandonment /
Death Certificate of parents
4. Medical Evaluation / History
5. Psychological Evaluation, if necessary
6. Recent photo of the child [Sec. 8]

D. Inter-Country Adoption Procedure

1. Pre-Adoptive Placement Costs

i. Sec. 12, RA 8043. The applicant(s) shall bear the following costs
incidental to the placement of the child;
(a) The cost of bringing the child from the Philippines to the
residence of the applicant(s) abroad, including all travel expenses
within the Philippines and abroad; and
(b) The cost of passport, visa, medical examination and psychological
evaluation required, and other related expenses.

The Inter-Country Adoption Board shall also collect fees, charges, and
assessments [Sec.13].

2. Venue for Filing Applications

Applications shall be filed either with:
a. The Philippine Regional Trial Court having jurisdiction over the
child, or with
b. The Board, through an intermediate agency (governmental or
accredited agency) in the country of the prospective adoptive
parents [Sec. 10].
 ADOPTION 57
3. Family Selection / Matching Process
The Board shall ensure that inter-country adoption is done in the best
interest of the child [Sec. 7].
The matching of the child with an applicant involves three stages:
(1) pre-matching,
(2) matching conference, and
(3) post-matching conference [Sec. 37, RA 8043 Amended IRR].
Before the Board approves the matching proposal, no matching
arrangement shall be made between the applicant and the child’s
parents/guardians or custodians concerning a particular child, except
in cases of adoption of a relative or in cases where the child’s best
interests is at stake [Sec. 38, RA 8043 Amended IRR]. This is to
preserve the integrity of the adoption proceedings.

4. Applicant’s Acceptance
Once the matching proposal is approved, a notice of matching shall be
sent to the concerned Central Authority or foreign adoption agency
within five (5) days.
The applicant/s shall notify the Central Authority or Foreign Adoption
Agency (FAA) in writing of their decision on the matching proposal
within fifteen (15) working days from receipt of said proposal.

If the applicant/s needs additional information about the child and/

or they need more time to make a decision, an extension of thirty
(30) working days may be granted. [Sec. 37, RA 8043 Amended
IRR]

5. Pre-Departure Preparation of the Child

The concerned Child Placing Agency shall prepare the child for his/
her placement to minimize the anxiety and trauma due to separation
from persons with whom the child may have formed attachments.
[Sec. 41, RA 8043 Amended IRR]

6. Physical Transfer of the Child

For not later than twenty (20) working days after the issuance of the
child’s visa, the adoptive parents or anyone of them shall personally
fetch the child from the Philippines. The applicant shall stay in the
country with the child for at least five (5) days to allow bonding
among them.

The unauthorized failure to do so may result in the cancellation of the

Placement Authority. [Sec. 42, RA 8043 Amended IRR]
58 ADOPTION

7. Trial Custody
Trial custody begins upon the physical transfer of the child to the
applicant who, as custodian, shall exercise substitute parental
authority over the child. [Sec. 44, RA 8043 Amended IRR]

The trial custody shall last for six (6) months during which the Central
Authority and/or the FAA shall be responsible for the pre-adoptive
placement, care and family counseling of the child. [Sec. 45, RA
8043 Amended IRR]

Any serious ailment, injury or abuse of the child from the adoptive
parent(s) or from other household members or the adoptive parent(s)
suffer from any serious ailment or injury that will make the adoption
untenable shall be reported to the Board.
In the event that all efforts to restore the parent-child relationship
between the child and applicant/s fail, the placement may be
terminated and the child may be given a new placement or repatriated.
[Secs. 46, 48, 49, RA 8043 Amended IRR]

8. Petition for Adoption

If a satisfactory pre-adoptive relationship is formed between the
applicant/s and the child, the Board shall transmit an Affidavit of
Consent to the Adoption. The Central Authority and/or the FAA
shall file the petition for adoption of the child to the proper court or
agency in accordance with their national law. [Secs. 50 and 51, RA
8043 Amended IRR]

9. Decree of Adoption
A copy of the final Decree of Adoption or its equivalent shall be
transmitted by the Central Authority and/or the FAA to the Board
within one (1) month after its issuance. [Sec. 52, RA 8043 Amended
IRR]

Tamargo v. CA
G.R. No.85044 (1992)

Where the petition for adoption was granted after the child had shot and
killed a girl, the Supreme Court did not consider the retroactive effect given
to the decree of adoption so as to impose a liability upon the adopting par-
ents at a time when the adopting parents had no actual
or physical custody over the child. Retroactive effect may perhaps be given
where such is essential to permit the accrual of some benefit or advantage
in favor of the adopted child. In the instant case, however, to hold that pa-
rental authority had been retroactively lodged in the adopting parents so
as to burden them with liability for a tortious act that they could not have
foreseen and which they could not have prevented would be unfair and
unconscionable.
 ADOPTION 59
Lazatin v. Campos
G.R. No. L-54955-54 (1979)

Adoption is a juridical act, proceeding in rem. Because it is artificial, the stat-

utory requirements in order to prove it must be strictly carried out. Petition
must be announced in publications and only those proclaimed by the court
are valid. Adoption is never presumed.
Santos v. Aranzanso
G.R. No. L-23828 (1966)

Validity of facts behind a final adoption decree cannot be collaterally at-

tacked without impinging on that court’s jurisdiction.
DSWD v. Belen
G.R. TJ-96-1362 (1997)

Participation of the appropriate government instrumentality in performing

the necessary studies and precautions is important and is indispensable to
assure the child’s welfare.
Landingin v. Republic
G.R. No. 164948 (2006)

Consent for adoption must be written and notarized.

Sayson v. CA
G.R. No. 89224-25 (1992)

Although an adopted child is deemed to be a legitimate child and have the

same rights as the latter, these rights do not include the right of represen-
tation (because the adopted child has no right to inherit from the grandpar-
ent). The relationship created by the adoption is between only the adopting
parents and the adopted child. It does not extend to the blood relatives of
either party.
 VIII. SUPPORT

I. Composition
a. Sustenance or Food;
b. Dwelling;
c. Clothing;
d. Medical Attendance;
e. Education; which shall include his schooling or training for some
profession, trade or vocation, even beyond the age of majority,
f. Transportation.

II. Who are Obliged to Support

a. Spouses;
b. Legitimate ascendants and descendants;
c. Parents and their legitimate children and the legitimate and illegitimate
children of the latter;
d. Parents and their illegitimate children and the legitimate and
illegitimate children of the latter; and
e. Legitimate brothers and sisters, whether of full or half-blood.

De Asis v CA
303 SCRA 176

The Supreme Court ruled that the compromise agreement entered into
by the mother whereby she renounced the claim of support for her son
from the defendant who denied paternity subject to the condition that
said defendant will not pursue his counterclaim, is not valid.
 SUPPORT 61
Sanchez v Zulueta
68 PHIL. 110
A child born out of an adulterous relationship of the wife and another
man is not entitled to support from the husband. A valid defense to re-
fuse support by a husband to a child claiming support is when the child
is the fruit of an adulterous relationship of the wife, for in such case, the
child is not that of the person from whom support is demanded

III. Amount
a. shall be in proportion to the resources or means of the giver and to the
necessities of the recipient.

IV. Order of Support

a. When two or more persons are obliged to give support, liability shall
devolve upon the following, in this order:
(1) Spouse
(2) Descendants in the nearest degree
(3) Ascendants in the nearest degree
(4) Siblings
b. When two or more persons are obliged to give support, liability shall
devolve upon the following, in this order:
(1) Child subject to parental authority
(2) Spouse
(3) Descendants in the nearest degree
(4) Ascendants in the nearest degree
(5) Siblings

V. Support Given by Stranger

a. If without the knowledge of the person entitled to support, the stranger
shall have a right to claim the same from the former, unless it appears
that he gave it without intention of being reimbursed.
 IX. PARENTAL AUTHORITY

I. Parental Authority is the sum total of the rights of parents over the person
and property of their unemancipated children. Parental authority refers to
the right and duty of parents under the law to protect their children, to care
for them in sickness and in health, and to do whatever may be necessary for
their care, maintenance and preservation.

A. GENERAL PROVISIONS
I. Joint Parental Authority
A. Parental authority shall be exercised jointly by the father and the
mother over the person and property of their common children.
B. Requisites:
1. the paternity is certain; and
2. the father and the mother of the illegitimate child must be
living together under one roof with the child.

II. Preferential Choice of the Father

A. In case of conflict between the parents in the manner of rearing
the child under their joint parental authority, the decision of the
father shall prevail.

III. Absence or Death of Parent or Remarriage

A. In case of absence or death of either parent, the parent present
or alive
B. Remarriage of one parent won’t affect the parental authority
over the children
 PARENTAL AUTHORITY 63
IV. Separation
A. In case the parents of the child are separated, whether legally or
by a de facto separation, parental authority shall be exercised
by the parent designated by the court.
B. General Rule: Child below 7 years old- custody is with the
mother
Exception: there are compelling reasons to deprive the mother
of such custody.

Dacasin vs. Del Mundo-Dacasin

G.R. No. 168785, Feb. 5, 2010

The second paragraph of Article 213 of the Family Code, which

provides that “no child under seven years of age shall be separated
from the mother unless there are compelling reasons”, is mandatory.
The Joint Custody Agreement executed by the parents of the child
after obtaining a divorce in the United States cannot be enforced
here as it is void ab initio for being contrary to law. The agreement
would have been valid if the spouses have not divorced or separated
because the law provides for joint parental authority when the
spouses live together

C. Child above 7 years old- the child is given the right to choose
but the choice of the child may be overruled by the court if it
finds the same to be not in the best interest of the child

V. Substitute Parental Authority

A. Given by law to grandparents in case of death, absence or
unsuitability of the child’s parents to exercise parental authority
B. If both the paternal and maternal grandparents of the child
are still living, the court will decide to whom the custody
and parental authority over the child be awarded taking into
consideration the best interest and welfare of the child.

B. SUBSTITUTE AND SPECIAL PARENTAL AUTHORITY

I. Parents in Default
A. In default of parents or a judicially appointed guardian, the
following person shall exercise substitute parental authority
over the child in the order indicated:
1. The surviving grandparent, as provided in Article 214;
2. The oldest brother or sister, over twenty-one years of age,
unless unfit or disqualified; and
64 PARENTAL AUTHORITY

3. The child’s actual custodian, over twenty-one years of age,

unless unfit or disqualified.

II. Children Entrusted in Summary Judicial Proceedings

Foundling- a child with no known parents.
Abandoned, neglected, or abused children- those whose parents
are known but were deserted, abandoned or not anymore provided
the required parental care and guidance by their said parents

III. Special Parental Authority

A. The school, its administrators and teachers, or the individual,
entity or institution engaged in child are shall have special
parental authority and responsibility over the minor child while
under their supervision, instruction or custody.
B. Where the school is academic rather than technical or vocational
in nature, responsibility for the tort committed by the student
will attach to the teacher-in-charge of such student, following
the first part of the provision. However, if the establishment is
a school of arts and trades, it is the head thereof, and only he,
shall be held liable as an exception to the general rule (Amadora
vs. Court of Appeals, G.R. No. 47745, April 15, 1988)

C. EFFECT OF PARENTAL AUTHORITY UPON THE PERSONS OF THE

CHILDREN

I. Rights and Duties of Persons Exercising Parental Authority upon

the Person of a Child
1. To keep them in their company, to support, educate and instruct
them by right precept and good example, and to provide for
their upbringing in keeping with their means;
2. To give them love and affection, advice and counsel,
companionship and understanding;
3. To provide them with moral and spiritual guidance, inculcate in
them honesty, integrity, self-discipline, self-reliance, industry
and thrift, stimulate their interest in civic affairs, and inspire in
them compliance with the duties of citizenship;
4. To furnish them with good and wholesome educational
materials, supervise their activities, recreation and association
with others, protect them from bad company, and prevent
them from acquiring habits detrimental to their health, studies
and morals;
5. To represent them in all matters affecting their interests;
 PARENTAL AUTHORITY 65
6. To demand from them respect and obedience;
7. To impose discipline on them as may be required under the
circumstances; and
8. To perform such other duties as are imposed by law upon
parents and guardians.

II. Vicarious Liability of Parents

A. Parents are principally and primarily liable for the acts or
omissions of their unemancipated children which resulted to
the damage or prejudice of another
B. It is necessary that the unemancipated child must still be living
in their company and under their parental authority

III. Civil Liability of Parents

A. Parents and other persons exercising parental authority shall
be civilly liable for the injuries and damages caused by the acts
or omissions of their unemancipated children living in their
company and under their parental authority subject to the
appropriate defenses provided by law.
B. Adopting parents are not liable for the crime committed by
their adopted child during the pendency of the adoption
proceeding in court. This is because when the child committed
the act, he was still under the custody and parental authority
of his natural parents. (Tamargo vs. Court of Appeals, 209 SCRA
518).

D. EFFECT OF THE PARENTAL AUTHORITY UPON THE PROPERTY

OF THE CHILDREN
I. Joint Legal Guardianship
A. The father and the mother shall jointly exercise legal
guardianship over the property of their unemancipated child
without the necessity of a court appointment.
1. The authority of the parents over the property of their
children as legal guardian is limited only to acts of
administration or management. It does not include acts of
encumbrance or disposition (Nario vs. Philippine American
Life Ins. Co., 20 SCRA 434).

B. In case of disagreement
General Rule: The father’s decision shall prevail.
Exception: Unless there is judicial order to the contrary
66 PARENTAL AUTHORITY

II. Nature of Administration

A. The property of the unemancipated child earned or acquired
with his work or industry or by onerous or gratuitous title shall
belong the child in owner and shall be devoted exclusively to
the latter’s support and education, unless the title or transfer
provides otherwise
B. The right of the parents over the fruits and incomes of the child’s
property shall be limited primarily to the child’s support and
secondarily to the collective daily needs of the family

E. SUSPENSION AND TERMINATION OF PARENTAL AUTHORITY

I. When Terminated
A. Upon the death of the parents;
B. Upon the death of the child; or
C. Upon emancipation of the child.

Unless subsequently revived by a final judgment, parental authority

also terminates:
A. Upon adoption of the child;
B. Upon appointment of a general guardian;
C. Upon judicial declaration of abandonment of the child in a case
filed for the purpose;
D. Upon final judgment of a competent court divesting the party
concerned of parental authority; or
E. Upon judicial declaration of absence or incapacity of the person
exercising parental authority

II. When Suspended

A. Upon conviction of the parent or the person exercising the same
of a crime which carries with it the penalty of civil interdiction
B. Parent does the following:
1. Treats the child with excessive harshness or cruelty;
2. Gives the child corrupting orders, counsel or example;
3. Compels the child to beg; or
4. Subjects the child or allows him to be subjected to acts of
lasciviousness.
 PARENTAL AUTHORITY 67
Exception: If the child was subjected to or allowed to be subjected
to sexual abuse, parental authority shall be not just suspended
but permanently deprived

III. When Reinstated

A. Automatically upon service of penalty (civil interdiction)
B. Automatically upon pardon or amnesty of the offender.
C. By judicial order, if the court finds that the cause therefore has
ceased and will not be repeated
 X. EMANCIPATION OF AGE OF MAJORITY

I. When Emancipation Takes Place

A. By attainment of majority, at the age of eighteen years
B. Marriage is no longer a ground for emancipation as the age of majority
and the marriage age are already the same

II. Effects of Emancipation

A. Termination of parental authority over the person and property of the
child emancipated
B. The person emancipated becomes qualified and responsible for all acts
of civil life.
Exception:
A. Persons possessing parental authority over the emancipated
individual are needed to give their respective parental consent until
the emancipated individual is at the age of twenty-one.
 Main Office
Room 104 1st Floor Cardinal Hoffner Training Center,
Social Development Complex, Ateneo de Manila University,
Loyola Heights, Quezon City 1108, Philippines
Tel Nos. (+63) (2)84266001 ext. 4859-4860
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Tel No.(+63) (82)2894161
Email: [email protected]
 SALIGAN
SALIGAN seeks to effect social change by working with
women, the basic sectors, and local communities for
their empowerment through the creative use of law
and legal resources.